Lincoln and FDR Defy the Supreme Court - Part 1/2

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Lincoln and FDR Defy the Supreme Court - Part 1/2

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WARTIME PRESIDENTS ABRAHAM LINCOLN AND FRANKLIN ROOSEVELT DEFY THE SUPREME COURT

EDITORIAL NOTES:

Richard H. Fallon Jr. (Harvard Law Professor of Constitutional Law) addressed the question whether any President is obligated to follow Supreme Court decisions when Prof. Fallon gave the 41st annual William H. Leary Lecture at the U/U Law School on 10/26/2006.

The transcript was polished and then published in the U/U Law Review (the article follows below but is available on line in Adobe format at http://www.law.harvard.edu/faculty/dire ... bliography). Among assistants whom Prof. Fallon thanked in his introductory footnote is Prof. Jack Goldsmith who, we know from our Lichtblau book, withdrew and replaced the famous Dept/Justice torture and warantless wiretap memos.

Prof. Fallon (BA Yale 1975, Rhodes Scholar 1975-1977, JD Yale Law School 1980) has written extensively on Constitutional Law and was voted the most outstanding faculty member by two different graduating classes (2001 and 2006) despite being only one of 222 HLS faculty members.

He focuses on three possible answers, while emphasizing that none of them is required – (1) the President must honor decisions only insofar as they relate to the parties actually involved in the law suit; (2) the President must honor the principles involved in every Supreme Court decision regardless of whether a party to the law suit is involved in the situation at hand; and (3) the President (and also Congress) can decide for themselves what the Constitution means subject (in the case of the President) only to the “checks and balances” of being impeached by Congress or turned out of office at the next election.

Prof. Fallon gives great weight to what past Presidents have done, for example –

(1) Thomas Jefferson defying a court order to produce documents;
(2) Thomas Jefferson ordering Secretary of State (and later President) James Madison to refuse to acknowledge the court’s jurisdiction in the famous case of “Marbury v. Madison” while standing ready to defy the Supreme Court if it ruled adversely (it didn’t)
(3) Andrew Jackson during the War of 1812 refusing to assist in enforcing a Supreme Court order against the State of Georgia to release a prisoner with his famous statement “John Marshall (Chief Justice) has made his decision, now let him enforce it.”
(4) Abraham Lincoln defying the Supreme Court’s decision requiring him to release a Confederate soldier.
(5) Franklin Roosevelt telling the Supreme Court in advance that he would defy any decision that Nazi agents should receive civilian trials, rather than be executed expeditiously pursuant to military tribunals (even though one of the Nazi agents was a U.S. citizen) – following which the Supreme Court “knuckled under” in their decision!!!

Enjoy!!!


EXECUTIVE POWER AND THE POLITICAL CONSTITUTION
Richard H. Fallon, Jr. (Ralph S. Tyler, Jr. Professor of Constitutional Law, Harvard Law School)
As published in the University of Utah Law Review.

*****
Introductory Footnote = I am grateful for extremely helpful comments on earlier drafts by David Barron, Jack Goldsmith, and John Manning. Martin Kurzweil provided excellent research assistance. This Article is based on the forty-first annual William H. Leary Lecture, delivered at the S.J. Quinney College of Law, University of Utah, on October 26, 2006.
*****

I. INTRODUCTION

Is the President always constitutionally obliged to obey judicial decisions determining the rights of named parties in lawsuits?

*****
Footnote 1 = This is just one of the questions subsumed under the more general question of whether the President is entitled to engage in extrajudicial constitutional interpretation or, alternatively, has an obligation to follow judicial interpretations of the Constitution. For discussions of the broader question, see, for example, Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359 (1997); Neal Devins & Louis Fisher, Judicial Exclusivity and Political Instability, 84 VA. L. REV. 83 (1998); John Harrison, The Role of the Legislative and Executive Branches in Interpreting the Constitution, 73 CORNELL L. REV. 371 (1988); Sanford Levinson, Could Meese Be Right This Time?, 61 TUL. L. REV. 1071 (1987); and Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153 (1997). According to one useful taxonomy, occasions for executive interpretation of the law, and thus issues involving executive obligations to accept judicial interpretations as binding, fall into four categories:

(1) pardons and vetoes issued on constitutional grounds . . . ; (2) nonexecution of statutes the executive deems unconstitutional . . . ; (3) nonacquiescence by the executive branch in the legal rule announced by the courts as the governing rule for the executive branch, except when enforcing the judgment in that particular case . . . ; and . . . (4) nonexecution of court judgments even in the particular case where rendered . . . . Michael Stokes Paulsen, The Most Dangerous Branch: The Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 263–64 (1994).

Even otherwise ardent academic champions of presidential authority to interpret the Constitution have generally acknowledged a presidential obligation to enforce judicial judgments rendered in particular cases. See, e.g., Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905, 926–27 (1990); Edwin Meese III, The Law of the Constitution, 61 TUL. L. REV. 979, 988–89 (1987). Professor Paulsen is the most prominent defender of a residual presidential power to decline to obey or enforce judicial orders even as applied to the cases in which they are issued. See Paulsen, supra, at 223, 226.
*****


This question is a narrow one, concerned solely with executive obligations to obey or enforce judicial judgments, not with whether the President must conform in all respects and in all matters to what the courts say.

*****
Footnote 2 = See Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. REV. 123, 126 (1999) (“The operative legal act performed by a court is the entry of a judgment; an opinion is simply an explanation of reasons for that judgment.”).
*****

To be slightly more concrete, I am thus concerned only with such questions as whether, if a court orders the executive branch to release a prisoner, the President must obey the order even if the President conscientiously believes the order to be mistaken as a matter of law. Or, to take just one more example, if a court orders the President to stop tapping the phones of named individuals, does the Constitution oblige the President to desist, even if the President believes that the court erred, and possibly erred disastrously, in its determination of executive authority?

*****
Footnote 3 = I take the question whether the President has a duty to obey judicial judgments to be the question whether a final judicial judgment in a litigated matter conclusively determines the President’s legal obligations with respect to the rights and obligations of the parties. In other words, as I shall use the term, the question whether the President has a duty to obey judicial judgments is the question of whether the President would violate the law if he failed to obey. This is a more exacting usage of the term duty than that employed by Professors Alexander and Schauer, see supra note 1, at 1362–66 & n.13, who appear to equate the question of whether officials have a duty to obey judicial judgments with the question of whether a judicial judgment gives them a legal reason (that may be of greater or lesser weight) that they would not otherwise have to behave as the court directs. I do not, however, equate the question of legal obligation with the question of moral obligation. See infra notes 87–94 and accompanying text. In other words, I take seriously the possibility that there may be rare circumstances in which it would be morally appropriate, all things considered, for a President to disobey the law.
*****

Despite the narrowness of this topic, I believe that examining it may yield some general insights not only about timely issues of constitutional law, but also about our constitutional order more generally.

For purposes of thinking about the outer limits of executive power under the Constitution, among the most important and intriguing cases in constitutional history is Ex parte Merryman.

*****
Footnote 4 = 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487).
*****

At stake in Merryman was the constitutional authority of the President to declare martial law in the crucial border state of Maryland—which connected Washington, D.C., to the north—in the immediate run-up to the Civil War and, having done so, to detain a suspected Confederate without judicial trial.

*****
Footnote 5 = Id. at 147–48.
*****

The more technical legal question was whether the President had behaved lawfully when he purported to suspend the capacity of the courts to issue writs of habeas corpus—the legal device by which courts would otherwise be able to order executive officials to release prisoners whose detention was not authorized by law.

The Constitution specifically contemplates that “[t]he Privilege of the Writ of Habeas Corpus . . . [may be suspended] when in Cases of Rebellion or Invasion the public Safety may require it.”

*****
Footnote 6 = U.S. CONST. art. I, § 9, cl. 2.
*****

But the Suspension Clause appears in Article I, which enumerates the powers of Congress and imposes general limitations on the state and national governments, rather than in Article II, which vests powers in the President. Ruling in his capacity as circuit judge, Chief Justice Roger Taney concluded in Merryman that only Congress, not the President, could validly suspend the judicial power and obligation to issue writs of habeas corpus.

*****
Footnote 7 = See Merryman, 17 F. Cas. at 148.
*****

Accordingly, he ordered that the prisoner Merryman, whose detention Congress had not purported to authorize, must be released. In addition, he directed that a copy of his decision should be delivered personally to President Abraham Lincoln “to determine what measures he will take to cause the civil process of the United States to be respected and enforced.”

*****
Footnote 8 = Id. at 153.
*****

President Lincoln chose to defy the Chief Justice’s decision. As Lincoln explained in a message to Congress several months later, he believed that the Chief Justice had misread the Constitution.

*****
Footnote 9 = See Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN 421, 429–31 (Roy P. Basler ed., 1953).
*****

Although the provision for habeas corpus relief could be interpreted literally and in isolation to preclude presidential suspension of the writ, even in times of emergency, Lincoln thought this too narrow a construction of a Constitution that Chief Justice John Marshall had once described as “intended to endure for ages” and thus, necessarily, as designed to be adaptable to various crises in human affairs.

*****
Footnote 10 = See M’Culloch v. Maryland, 17 U.S. 316, 415 (1819).
*****

Because the Suspension Clause “was plainly made for a dangerous emergency,” Lincoln wrote, “it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course until Congress could be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion.”

*****
Footnote 11 = Lincoln, supra note 9, at 431.
*****

Regardless of how one judges Lincoln’s substantive argument that the Suspension Clause should be interpreted to permit presidential suspension in urgent cases, it evades—rather than addresses—another, equally pressing issue about the nature of the Constitution and presidential authority under it. Was the President legally bound, or not, to accede to the ruling of the judicial branch that Merryman could not lawfully be detained under the Constitution and laws of the United States? It is this very basic issue regarding the nature of the United States Constitution and the roles of the executive branch, the courts, and ultimately the people of the United States under the Constitution that I want to explore.

As is perhaps obvious, the question of executive branch obligations to obey judicial decrees has potentially direct implications for current events. We live in a time of what is often described as an ongoing war against terrorism. In the context of that war, the executive branch has asserted far-reaching claims of inherent authority to pursue policies that have not been authorized, and sometimes even to take action that has been forbidden, by Congress.

*****
Footnote 12 = See, e.g., Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2774-75 (2006) (holding that the President lacked authority to employ military commissions on terms forbidden by Congress); James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A1 (“Mr. Bush’s executive order allowing some warrantless eavesdropping on those inside the United States—including American citizens, permanent legal residents, tourists and other foreigners—is based on classified legal opinions that assert that the president has broad powers to order such searches . . . .”); Memorandum from Jay S. Bybee, Assistant Attorney Gen., U.S. Dep’t of Justice, to Alberto R. Gonzales, Attorney Gen., U.S. Dep’t of Justice 31 (Aug. 1, 2002), available at http://www.humanrightsfirst.org/us_law/ ... intlaw.htm (follow “August 1, 2002: Assistant Attorney General Jay Bybee: Memo to Mr. Gonzales” hyperlink) (arguing that application of a U.S. anti-torture law to the President’s conduct of the war on terror that “interferes with the president’s direction of such core war matters as detention and interrogation of enemy combatants thus would be unconstitutional”).
*****

The immanent logic of the Bush administration’s position may imply that the President could also, under the Constitution, lawfully refuse to obey a judicial order. I hasten to add, however, that both my subject and my analysis are general, involving the Lincoln administration as much as the Bush administration.

I should make one more preliminary, methodological point before proceeding further. The question whether the President is bound by what the courts say cannot be answered merely by looking at what the courts have said.

*****
Footnote 13 = At least since Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court has maintained that Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), established that “the federal judiciary is supreme in the exposition of the law of the Constitution” and that “that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” Cooper, 358 U.S. at 18.
*****

To proceed in this way would presuppose the answer to the question in issue by assuming that the courts, rather than the President, always have ultimate authority under the Constitution to define, if not enforce, the President’s constitutional powers and duties. The question whether judicial rulings bind the President requires a deeper inquiry. Does the Constitution, by its nature, make courts the ultimate judges of their own authority on every constitutional question, including the question of their authority to bind the President? Or does the Constitution reserve some questions about the reach of judicial authority for the President or, in Larry Kramer’s phrase, for “the people themselves”?

*****
Footnote 14 = See generally LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004).
*****

II. SOME CONSTITUTIONAL HISTORY

It may help to begin substantive analysis with what I take to be common ground. Although we often think of the Constitution as a charter of governmental powers and a guarantee of individual liberties, we skip an important step—evident to all upon reflection—when we do so. The most basic function of the Constitution is to constitute the United States of America as a nation and the people living under the Constitution as a political community. The Constitution achieves this effect partly by establishing offices and conferring powers on officeholders. At a deeper level, however, the Constitution binds together people living in geographically disparate regions and constitutes them as members of a single nation, united by their understanding of themselves as fellow citizens with a shared political history and a common future.

Through its constitutive effects, the Constitution creates an agreed framework for legal and political argument.

*****
Footnote 15 = See generally David A. Strass, Common Law, Common Ground, and Jefferson’s Principle, 112 YALE L.J. 1717 (2003) (explaining the Constitution’s function as a focal point for argument).
*****

We argue about what powers the President has under the Constitution, not what powers the President would have under a different or better Constitution. In thinking about presidential power, we also appeal to our nation’s history and traditions. We parse the history books to discover what past presidents did, with special attention to the practices of such giants as Washington, Jefferson, Jackson, Lincoln, and Franklin Roosevelt. In contemporary constitutional debates about the separation of powers, we often ascribe nearly as much significance to what past, great presidents have done as to judicial precedents.

The tale of what courts have done is also relevant to contemporary arguments about executive and judicial power. Crucial to our understanding are such well-known cases as Marbury v. Madison (Footnote 17 = 5 U.S. at 137) and Brown v. Board of Education (Footnote 17 = 347 U.S. 483 (1954)) in which courts seem to have served the nation well. But we also point to other cases as cautionary tales. In this category lie Dred Scott v. Sandford, in which the Supreme Court held that Congress had no power to limit the spread of slavery and ruled that African-Americans were incapable of becoming citizens of the United States (Footnote 18 = 60 U.S. (19 How.) 393, 406–07, 450–51 (1857); Lochner v. New York (Footnote 19 = 198 U.S. 45 (1905)), which exemplified a one-time judicial disposition to strike down economic regulatory legislation; and many others.

There is no consensus, I think, about where to locate Ex parte Merryman (Footnote 20 = 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487)), in which Abraham Lincoln, arguably our greatest President, defied a clear judicial order from the Chief Justice of the United States. Surely, however, Merryman has not been widely embraced as reflective of the way that we normally do, or should, expect our presidents to behave under the Constitution.

In light of our history, I think that most of us expect that the executive branch will, and indeed is constitutionally obliged to, obey judicial judgments at least in the absence of extraordinary circumstances. Indeed, a number of testing cases in which the President has yielded to judicial authority are often cited as epitomizing the status of the United States as a nation subject to the rule of law.

United States v. Nixon, the “Nixon Tapes” case (Footnote 21 = 418 U.S. 683 (1974)), fits this mold. In 1974 many of the former top aides to President Richard Nixon were under criminal indictment. The President himself was suspected of covering up their wrongdoing and, more ominously, of having abused the powers of his office to harm his political enemies. In this context, a special prosecutor subpoenaed a number of secretly recorded tapes of oval office conversations potentially pertinent to his criminal investigation (Footnote 22 = Id. at 686). The President initially resisted, claiming a constitutional privilege to maintain the confidentiality of his give-and-take with his advisors (Footnote 23 = Id. at 705). Yet when the Supreme Court directed Nixon to give up the tapes, he promptly did so. His accession to the judicial judgment was widely hailed as a vindication of the premise that ours is a government of laws and not of men.

*****
Footnote 24 = See, e.g., Kenneth Karst, A Powerful Reminder that the Law Is Supreme, L.A. TIMES, July 28, 1974, at pt. V (“The popular response to the decision has been almost universally favorable. The principle of government under law, it seems, is not a partisan issue.”); Cox Says Ruling Affirms Cornerstones of Liberty, N.Y. TIMES, July 25, 1974, at 23 (citing Archibald Cox’s view that the Court’s decision and Nixon’s acquiescence vindicate the view that the President is under the law); The Court and the President, L.A. TIMES, July 25, 1974, at C6 (“The sum of the court’s action and the President’s acceptance of it is a credit to the American system of government.”).
*****

Youngstown Sheet & Tube Co. v. Sawyer (Footnote 25 = 343 U.S. 579 (1952)) stands in the same tradition. In that case President Harry Truman had taken over the nation’s steel mills to forestall a strike and work stoppage in the midst of the Korean War. But Truman acted without congressional authorization, and the mill owners sued to challenge his initiative. When the Supreme Court ruled in favor of the steel industry and against Truman, Truman dutifully complied with the Court’s edict. The judgment of history has been that the Court’s decision marked a triumph for the rule of law and for the idea that no official, not even the President, is above the law.

The Supreme Court also claimed to vindicate the rule of law in Cooper v. Aaron (Footnote 26 = 358 U.S. 1 (1958)). In Cooper, which grew out of resistance by state and local officials to a court order to desegregate the public schools in Little Rock, Arkansas, the Court “unanimously reaffirmed” its decision in Brown (Footnote 27 = Id. at 19). Going a step further, the Justices rebuked the defendants for maintaining that they were not bound by Brown because they had not been parties to that earlier case. “[T]he federal judiciary is supreme in the exposition of the law of the Constitution,” the Court said (Footnote 28 = Id. at 18). Its interpretation of the Constitution in Brown was thus “the supreme law of the land,” the Court continued, and “[e]very state legislator and executive and judicial officer” was therefore obliged to obey its ruling (Footnote 29 = Id ).

Although there are important elements of continuity between Cooper and the other cases discussed thus far, it should also be evident that Cooper adds two additional variables. At issue in the other cases was whether the executive branch must necessarily obey a judicial order in a particular case. In Cooper, the Supreme Court claimed the authority to bind state and local officials as well (Footnote 30 = See id. at 17-18). What is more important, Cooper maintained that the obligation of obedience to Supreme Court decisions extends beyond the parties in the particular case before it (Footnote 31 = See id). The Court’s more general pronouncements of legal principles, the Justices said, bind all governmental officials in all future cases (Footnote 32 = See id).

Cooper’s claim of judicial authority to pronounce principles that everyone is obliged to accept and follow thereafter is a very heady one, which has stirred debate ever since. Cooper’s reasoning implies that it is wrong for public officials even to take steps to provoke the Supreme Court to reconsider constitutional rulings that those officials conscientiously believe to have been in error. For example, it would rule out official actions challenging the Court to reexamine Dred Scott (Footnote 33 = Dred Scott v. Sandford, 60 U.S. 19 (How.) 393 (1856)), or Lochner (Footnote 34 = Lochner v. New York, 198 U.S. 45 (1905)), or, in the modern day, Roe v. Wade (Footnote 35 = 410 U.S. 113 (1973)).

Before examining that position more closely, however, I want to make clear that the historical record reveals some important cases of presidential resistance even to the more limited claim with which I am most directly concerned—the claim that presidents must at least obey and enforce judicial rulings in particular cases. Although presidents have almost always acceded to judicial judgments determining the rights and obligations of named parties, there have been instances in which presidents either refused to obey, or let it be known that they would refuse to obey, specific judicial directives. Indeed, some of our greatest presidents adopted postures of defiance of judicial authority in cases in which they thought that large principles or important consequences were at stake. Thomas Jefferson refused to honor a subpoena duces tecum ordering him to provide documentary evidence in the criminal trial of his former Vice President and political enemy Aaron Burr.

*****
Footnote 36 = See William M. Meigs, The Independence of the Departments of Government, 23
AM. L. REV. 594, 595 (1889). The complex chain of events including at least two judicial subpoenas is laid out in Paul A. Freund, The Supreme Court, 1973 Term—Foreword: Presidential Privilege, 88 HARV. L. REV. 13, 24–30 (1974). Although Jefferson took steps to comply with what he took to be his obligations under the law, he insisted that the judgment concerning those obligations was his to make, and his compliance with one, if not both, of the subpoenas appears to have been less than total. Jefferson framed his claim of entitlement to resist the subpoenas as involving the independence of the branches of government:

But would the executive be independent of the judiciary, if he were subject to the commands of the latter, and to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south to east to west, and withdraw him entirely from his constitutional duties?

Letter from Thomas Jefferson to George Hay (June 20, 1807), in 11 THE WRITINGS OF THOMAS JEFFERSON 239, 241 (Albert Ellery Bergh ed., 1905).
*****(End of Footnote 36)

Jefferson also directed his Secretary of State James Madison to refuse to acknowledge the jurisdiction of the Supreme Court in Marbury v. Madison (Footnote 37 = 5 U.S. (1 Cranch) 137 (1803)), and it is widely and credibly reported that Jefferson had resolved to defy any Court order granting relief to William Marbury.

*****
Footnote 38 = See, e.g., 3 ALBERT J. BEVERIDGE, THE LIFE OF JOHN MARSHALL: CONFLICT AND CONSTRUCTION, 1800–15, at 126–27 (1919); Dean Alfange, Jr., Marbury v. Madison and Original Understandings of Judicial Review: In Defense of Traditional Wisdom, 1993 SUP. CT. REV. 329, 383; see also Letter from Thomas Jefferson to Mrs. John Adams (Sept. 11, 1804), in 11 THE WRITINGS OF THOMAS JEFFERSON, supra note 36, at 49, 50 (“[N]othing in the Constitution has given [the judiciary] a right to decide for the Executive, more than to the Executive to decide for them.”).
*****

Andrew Jackson had a history of actual, threatened, or reported defiance of court rulings. As a general in the army, Jackson disobeyed a judicial order while occupying the City of New Orleans during the War of 1812.

*****
Footnote 39 = See Abraham D. Sofaer, Emergency Power and the Hero of New Orleans, 2 CARDOZO L. REV. 233, 242–49 (1981); Ingrid Brunk Wuerth, The President’s Power to Detain “Enemy Combatants”: Modern Lessons from Mr. Madison’s Forgotten War, 98 NW. U. L. REV. 1567, 1612–13 (2004).
*****

As President, Jackson is also reported to have said he would refuse to assist in enforcing the Supreme Court’s decree in Worcester v. Georgia, which ordered the State of Georgia to release a prisoner on the ground that his detention violated a federal treaty.

*****
Footnote 40 = 31 U.S. (6 Pet.) 515, 562-63 (1832). More specifically, the Court’s decision overturned a state criminal conviction and ordered the release of a prisoner on the ground that a federal treaty had withdrawn the State of Georgia’s power to enforce its legislation in Cherokee territory. Id. The issue in Worcester was highly politically charged due to its location in an ongoing national debate about the desirability and legality of the “removal” of Native American tribes from the eastern states despite federal treaties and laws guaranteeing tribal rights to their lands. See generally Joseph C. Burke, The Cherokee Cases: A Study in Law, Politics, and Morality, 21 STAN. L. REV. 500 (1969) (describing the context of Worcester v. Georgia).
*****

According to well-polished legend, Jackson’s response upon learning of the Court’s ruling was: “John Marshall has made his decision, now let him enforce it.”

*****
Footnote 41 = Burke, supra note 40, at 525; see also III–IV G. EDWARD WHITE, HISTORY OF THE SUPREME COURT OF THE UNITED STATES: THE MARSHALL COURT AND CULTURAL CHANGE, 1815–35, at 737 (1988) (quoting Jackson as “noting in correspondence that the decision had ‘fell stillborne’”). It is admittedly a matter of some controversy whether Jackson actually made this statement. See Burke, supra note 40, at 525. It is clear, however, that anti-Jackson newspapers quickly began to berate him for not enforcing the Supreme Court’s decision. See id. at 524. Also clear, though sometimes overlooked, is that Jackson’s well-known defense of the view that judicial decisions did not bind the President, which he advanced in explaining his decision to veto a bill re-chartering the Bank of the United States, “was written at a time when the opposition press was denouncing Jackson for refusing to enforce the Worcester decision.” Id. at 528. In his much-quoted veto message, Jackson proclaimed that the President and the judicial branch were “coordinate authorities” and that “the Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution.” Andrew Jackson, Veto Message (July 10, 1832), in 3 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1145 (James D. Richardson I ed., 1897). In the Worcester case itself, no need for federal enforcement of the judgment ultimately arose because the Governor of Georgia pardoned the defendant and thereby avoided any imminent collision between state and federal authority. See Edwin A. Miles, After John Marshall’s Decision: Worcester v. Georgia and the Nullification Crisis, 39 J. S. HIST. 519, 534–43 (1973) (explaining, inter alia, the wish of Georgia’s governor not to appear to be siding with the state of South Carolina in the contemporaneous “nullification” controversy).
*****

Franklin Roosevelt, whose frustrations with the Supreme Court ultimately led him to try to “pack” it,42 had prepared a message to the nation explaining that he would not obey the Court’s ruling in the so-called “Gold Clause Cases.”43

*****
Footnote 42 = See generally WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE AGE OF ROOSEVELT 82–162 (discussing the Court-packing episode and its aftermath).
*****
Footnote 43 = See id. at 87–88. The formal captions of the Gold Clause Cases were Nortz v. United States, 294 U.S. 317 (1935); Perry v. United States, 294 U.S. 330 (1935); and Norman v. Baltimore & Ohio Railroad Co., 294 U.S. 240 (1935).
*****

That message went undelivered only because the Court upheld Roosevelt’s decision to take the nation off the gold standard (Footnote 44 = See Perry, 294 U.S. at 354-58; Norman, 294 U.S. at 314-16). Even after the Court was dominated by New Dealers, Roosevelt threatened to defy an anticipated adverse decision in at least one notorious instance. The threat came in the wartime case of Ex parte Quirin, which involved the authority of the executive branch to use a military commission, rather than an Article III court, to try admitted Nazi agents who had sneaked into the United States as war criminals (Footnote 45 = 317 U.S. 1, 7–9 (1942)). Roosevelt wanted swift, military executions. Intent on having his way, he let it be known to the Supreme Court that


he would refuse to obey any decision granting the German soldiers judicial trials,46 even though the prisoners had been apprehended and detained in the United States, even though one of the detainees was an American citizen (despite his membership in the German army), and even though there was no impediment to a trial in a civilian court (Footnote 47 = Quirin, 317 U.S. at 7–9).

*****
Footnote 46 = See Bruce Ackerman, Don’t Panic, LONDON REV. BOOKS, Feb. 27, 2002, at 15, 15–16; see also WILLIAM O. DOUGLAS, THE COURT YEARS, 1939–1975: THE AUTOBIOGRAPHY OF WILLIAM O. DOUGLAS 138–39 (1980) (“The Attorney General, Francis Biddle, told the Court that the claims of the saboteurs were so frivolous, the Army was going to go ahead and execute the men whatever the Court did.”); David J. Danelski, The Saboteurs’ Case, 1 J. SUP. CT. HIST. 61, 69 (1996) (noting that Justice Owen Roberts, who had been asked by the Chief Justice to preside at the Justices’ conference prior to oral argument in Quirin, “told his colleagues that [Attorney General] Biddle feared that F.D.R. would execute the petitioners despite any Court action” and that the Chief Justice thereupon opined that “[t]hat would be a terrible thing”); Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 YALE L.J. 1259, 1291 (2001) (“t also appears that some highly questionable ex parte arm-twisting by the executive may have spurred the Supreme Court’s unanimous decision.”).
*****

Roosevelt was never put to the test only because the Supreme Court acceded to his will.

*****
Footnote 48 = In what Justice Antonin Scalia has recently described as “not [the] Court’s finest hour,” Hamdi v. Rumsfeld, 542 U.S. 507, 569 (2004), the Quirin Court ruled against the petitioners and in favor of the government in a brief per curiam opinion issued on the very next day after oral argument, 317 U.S. at 21. The Justices handed down opinions purporting to explain their decision several months later, after the petitioners had already been tried by military tribunals and executed. Danelski, supra note 46, at 71–73.
*****

Finally, there remains the case of Abraham Lincoln. I have already described Lincoln’s actions in Ex parte Merryman.49 I shall say more about Merryman and Lincoln’s views concerning executive obligations to obey judicial decrees below. First, however, it may be useful to put in place some templates for thinking about the obligation of the President, if any, to obey judicial decrees.

III. JUDICIAL POWER AND EXECUTIVE OBLIGATION: THREE MODELS

In thinking about executive and judicial power under the Constitution, and in particular about presidential obligations to obey judicial decrees, it may help to begin with three well-known positions—the Pure Judicial Supremacy Model, the Finality of Judgments Model, and the Political Constitution Model.

A. The Pure Judicial Supremacy Model

The Pure Judicial Supremacy Model endorses all of the claims of judicial power asserted by the Supreme Court in Cooper v. Aaron (Footnote 50 = 358 U.S. 1 (1958)). Under this model, it is the distinctive province and duty of the judicial branch to say what the law is. What is more, after the judicial branch has spoken, it is the obligation of the political branches to conform not only to the judgments of the judiciary, but also to the principles of law on which the judicial branch rested its conclusion.

To frame the position slightly more specifically, the Judicial Supremacy Model postulates that even in cases not actually litigated in court, executive officials should strive to interpret and apply the Constitution in the way that they would expect the Supreme Court to interpret and apply the Constitution in light of pertinent judicial precedents. If pertinent precedents indicate the Court would answer a question one way, the President should treat that answer as authoritative in nearly all contexts, with the narrow exceptions involving such inherently discretionary presidential functions as vetoing legislation and issuing pardons (Footnote 51 = See, e.g., Paulsen, supra note 1, at 264–65). For example, if it is clear the Supreme Court would uphold a claim of legal right, then the executive should honor that claim without subjecting an aggrieved party to the burden of litigation. Similarly, if the Court would regard a statute as constitutional, then it is a law that Article II requires the President to “faithfully execute,” even if the President would otherwise think the statute unconstitutional. Under the Pure Judicial Supremacy Model, it is thus an a fortiori case that the President must obey final judicial judgments determining the rights and obligations of the parties in particular controversies.

Support for the Pure Judicial Supremacy Model comes from two quite different sets of premises. Probably the most common defense reflects idealized notions that constitutional law stands above and distinct from the politics in which elected officials characteristically and perhaps incorrigibly engage; that it is the function of courts to reach decisions on grounds of principle, not expediency or popularity; and that once courts have spoken, efforts by the political branches to resist the full sweep of judicial interpretations of the Constitution, no matter how broadly framed, would somehow enmesh constitutional law in the hubbub of pragmatic and partisan argument that it is the function of constitutional law to transcend. In the early years of the republic, prominent champions of judicial review, including John Marshall, appear to have held one version of this position, anchored in the belief that law and politics both could and should be kept categorically distinct.

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Footnote 52 = See G. Edward White, Historicizing Judicial Scrutiny, 57 S.C. L. REV. 1, 8–16 (2005) (describing the “republican” views that Marshall espoused).
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In contemporary debates, Ronald Dworkin has famously championed the position that although judicial decisions are inevitably political in a broad, non-partisan sense, judges have a capacity for making decisions of principle, as distinguished from policy or expediency, that fit them uniquely for the office of constitutional interpretation.

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Footnote 53 = See Ronald Dworkin, The Forum of Principle, 56 N.Y.U. L. REV. 469 (1981), reprinted in RONALD DWORKIN, A MATTER OF PRINCIPLE 33–71 (1985); see also Dale Carpenter, Judicial Supremacy and Its Discontents, 20 CONST. COMMENT. 405, 425 (2003) (asserting that courts are more likely than the President to adhere to “constitutional principle” in the face of contrary public opinion).
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Recently Larry Alexander and Fred Schauer advanced a more pragmatic defense of the Pure Judicial Supremacy Model.

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Footnote 54 = See Alexander & Schauer, supra note 1, at 1359; see also Larry Alexander & Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 CONST. COMMENT. 455, 455–58 (2000) (reiterating and defending their earlier claims).
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Their argument rests on the premise that a central task of law, including constitutional law, is to “settle authoritatively what is to be done.” (Footnote 55 = Alexander & Schauer, supra note 1, at 1371). According to Alexander and Schauer, due respect for law’s “settlement function” (Footnote 56 = Id. at 1372) requires acknowledgment that the law has one authoritative expositor.

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Footnote 57 = See id. at 1377 (“The reasons for having laws and a constitution that is treated as law are accordingly also reasons for establishing one interpreter’s interpretation as authoritative.”).
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Under the Constitution, they argue, the authoritative expositor is the judicial branch. Other officials, including the President, should therefore accept judicial interpretations as binding.

B. The Finality of Judgments Model

Like the Pure Judicial Supremacy Model, the Finality of Judgments Model insists that the separation of powers established by the Constitution requires executive obedience of the judgments of courts in particular cases. According to the Finality of Judgments Model, however, the obligation of obedience extends only to judicial judgments, not to the broader propositions of law—potentially applicable to myriad other cases—on which courts rest their decisions. To describe this position as a “model” would, admittedly, be misleading for many purposes, for it leaves open a large number of important and controverted questions.

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Footnote 58 = For efforts to work out nuanced positions, see, for example, Dawn E. Johnsen, Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?, 67 L. & CONTEMP. PROBS. 105, 110–20 (2004); David A. Strauss, Presidential Interpretation of the Constitution, 15 CARDOZO L. REV. 113, 127–34 (1993).
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Prominent among these is whether the President should give great deference to the judgments of the judicial branch — although reserving final, independent judgment about whether to follow them 59 — in some or all cases to which the rationale of the judicial precedents would extend.60

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Footnote 59 = (Footnote 59 = I thus distinguish the notion that the executive branch should accord deference to the judgments of courts, in the sense of displaying respectful openness to being persuaded by them about what legal obligations the executive has, from the notion that the executive is conclusively bound as a matter of law to obey or enforce judicial judgments in particular cases. See supra note 1.
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Footnote 60 = If the demand for further specification were pressed, the Finality of Judgments Model would undoubtedly fracture into a multitude of sub-models, each providing a different account of the President’s obligations of deference in response to diverse questions in diverse circumstances.
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Nevertheless, the Finality of Judgments Model suffices for my present purpose of exploring the extent, if any, to which judicial judgments impose a categorical obligation of obedience on the executive branch. The Finality of Judgments Model provides a sharp answer to this question by deeming the President bound to obey, without exercise of further independent judgment, only in the case in which a judicial judgment is actually rendered.

In technical legal terms, the Finality of Judgments Model roots judicial authority in the power and obligation to decide individual cases.

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Footnote 61 = See, e.g., Easterbrook, supra note 1, at 926; Harrison, supra note 1, at 373; Hartnett, supra note 2, at 147–48.
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According to the most familiar defense, the constitutional power to decide cases implies the power to decide cases finally or authoritatively, but it need not imply a broader power of the courts, with a single decision, to settle matters of great political and constitutional moment decisively and for all time.

In constitutional history, the most prominent and eloquent champion of the Finality of Judgments Model was Abraham Lincoln (notwithstanding his decision not to obey Chief Justice Taney’s ruling in Ex parte Merryman). Lincoln’s best known public statements followed the Supreme Court’s decision in the infamous Dred Scott case, in which the Supreme Court, in the course of rejecting Scott’s claim to have been emancipated from slavery, ruled more broadly that African-Americans were incapable of attaining citizenship, that Congress lacked the capacity to ban slavery in the territories, and that legislative efforts to confer free status on those held as slaves would violate the Constitution by depriving slave owners of property without due process of law.

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Footnote 62 = Dred Scott v. Sandford, 60 U.S. (19 How.) 393, at 404-06, 410, 416, 446-52 (1857). Although my summary of the holding of Dred Scott is fairly standard and meant to be non-controversial, there has been a debate from the beginning about which parts of the Court’s opinion were dicta and which where part of the holding. See Mark A. Graber, Desperately Ducking Slavery: Dred Scott and Contemporary Constitutional Theory, 14 CONST. COMMENT. 271, 275 (1997).
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Lincoln accepted the Court’s ruling as controlling the rights and obligations of the parties immediately before it, but he denied that it could foreclose continuing efforts by those with other views to press their anti-slavery agenda, either through politics or in the courts.

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Footnote 63 = Lincoln’s fullest statement of his position came in a debate during his 1858 senatorial contest with Stephen Douglas:

We oppose the Dred Scott decision in a certain way, upon which I ought perhaps to address you a few words. We do not propose that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free. We do not propose that, when any other one, or one thousand, shall be decided by that court to be slaves, we will in any violent way disturb the rights of property thus settled; but we nevertheless do oppose that decision as a political rule which shall be binding upon the voter, to vote for nobody who thinks it wrong, which shall be finding upon the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision. We do not propose to be bound by it as a political rule in that way . . . . We propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject.

Abraham Lincoln, Sixth Debate with Stephen A. Douglas, at Quincy, Ill. (Oct. 13, 1858), in 3 THE COLLECTED WORKS OF ABRAHAM LINCOLN, supra note 9, at 245–55.
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A court, he said, could not deprive the people of their right to be “their own rulers.”

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Footnote 64 = Abraham Lincoln, First Inaugural Address—Final Text (Mar. 4, 1861), in 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN, supra note 9, at 262, 268.
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There is a tension built into Lincoln’s view and into the Finality of Judgments Model more generally. This model accepts that there is no sharp divide between constitutional interpretation and political judgment, at least in some cases. Because of the importance of political judgment, opportunities of the people to influence the courts cannot be foreclosed. At the same time, the Finality of Judgments Model insists that constitutional law truly is law, in a distinctive sense, and that, at a minimum, judicial rulings in particular cases must be viewed as numbering among the “Laws” of the United States that the President is bound by Article II of the Constitution to “faithfully execute.”

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Footnote 65 = See U.S. CONST. art. II, § 3 (providing that the President “shall take Care that the Laws be faithfully executed”).
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C. The Political Constitution Model

Although judicial pronouncements in recent decades characteristically reflect the premises of the Finality of Judgments Model or more often the Pure Judicial Supremacy Model, those two models have not swept the field. According to the Political Constitution Model, each of the three branches of the national government gets to determine for itself what the Constitution means.

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Footnote 66 = KRAMER, supra note 14, at 170–72 (tracing this view, which he calls “departmentalism,” through American constitutional history and contending that it enjoyed wide currency well into the nineteenth century). Dean Kramer endorses this view himself, as does Professor Paulsen. See Paulsen, supra note 1, at 223, 226.
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Congress determines whether a law is constitutional when it enacts the law. Courts determine whether a law is constitutional when they are asked to enforce it. But a judicial ruling does not necessarily bind the executive. This is not to say the executive should give no deference to the judicial decision. In the ordinary run of cases, Professors Alexander and Schauer may be right about the importance of achieving
a final and authoritative, even if sub-optimal, resolution of constitutional issues (Footnote 67 = See Alexander & Schauer, supra note 1, at 1371-74). Nevertheless, the Political Constitution Model distinguishes displays of deference from acknowledgments of binding legal authority. In important cases, it maintains, the President retains a constitutional prerogative to defy even a direct judicial mandate.

To many in the modern era, the Political Constitution Model’s “departmental” approach—under which each branch of government has an independent responsibility for constitutional interpretation—may look unruly and even un-lawlike.

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Footnote 68 = See, e.g., Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 HARV. L. REV. 1594, 1635–37 (2005) (reviewing KRAMER, supra note 14) (criticizing “robust popular constitutionalism” that would invite other branches of government to reject judicial interpretations of the Constitution and call for ultimate resolution of disputed constitutional issues by “the people themselves” on this ground). But see Keith E. Whittington, Extrajudicial Constitutional Interpretation: Three Objections and Responses, 80 N.C. L. REV. 773, 779 (2002) (answering objection to independent extrajudicial constitutional interpretation).
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But the departmental approach has an inherent logic, rooted in its view of the nature of the Constitution and of constitutional law. According to the Political Constitution Model, the Constitution is not so much the repository of settled legal truths that should be applied by courts in a disinterested way as it is a political structure, the full implications of which frequently cannot be resolved without further argument and political judgment, sometimes of a pragmatic character. Insofar as the Constitution invites political contest over its meaning or proper applications, it becomes plausible to think that inter-branch disagreements about the Constitution are a species of political dispute that ought to be resolved through politics, not judicial mandate.

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Footnote 69 = See KRAMER, supra note 14, at 233–41 (championing the view that final authority to interpret the Constitution should rest with the people); cf. ADAM TOMKINS, PUBLIC LAW 18 (2003) (defining a “political constitution” as “one in which those who exercise political power . . . are held to constitutional account through political means, and through political institutions”).
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For an adherent of the Political Constitution Model, Lincoln’s position in Merryman may be exemplary.

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Footnote 70 = Indeed, Professor Paulsen refers to presidential power to refuse to obey judicial decisions as “the Merryman power” and terms Merryman “the most famous case illustrating the proposition” that the President possesses an independent power of constitutional interpretation even after the judicial branch has ruled on a particular case. Paulsen, supra note 1, at 223 n.16; see also Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 CARDOZO L. REV. 81, 91–95 (1993). There is a partial irony here, arising from Lincoln’s well-known championing of the Finality of Judgments Model in the aftermath of the Dred Scott case.
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According to this model, Lincoln, who had been lawfully elected and had taken an oath of office to preserve and defend the Constitution, was entitled to decide for himself what the Constitution permitted and required and to act accordingly: certainly the Constitution did not oblige him to accede to a judicial ruling that he thought not only erroneous, but also threatening to the Constitution’s continued force and existence.

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Footnote 71 = Lincoln framed the issue in exactly these terms. See Lincoln, supra note 9, at 430 (“[A]re all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”).
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We can also imagine how the Political Constitution Model would bear on issues involving the constitutional obligations of the Bush administration. The Political Constitution Model would by no means imply that the Bush administration was right about any particular substantive question of constitutional legality. Administration officials may be wrong in their claims about the substantive powers of the executive branch and about the rights of citizens and indeed of non-citizens subject to the reach of executive power. Nor would the Political Constitution Model necessarily imply that the President could rightly engage in secret defiance of seemingly applicable laws or judicial authorities.

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Footnote 72 =
One recent example of secret defiance of an applicable statute may come from the policies of the Bush administration in secretly wiretapping individuals located in the United States without warrants. See Risen & Lichtblau, supra note 12, at A1. See generally John Cary Sims, What NSA Is Doing . . . and Why It’s Illegal, 33 HASTINGS CONST. L.Q. 106 (2006). Ordinarily, 18 U.S.C. § 2511 (2006) requires the government to seek a warrant before intercepting electronic communications within the United States. Although the Foreign Intelligence Surveillance Act of 1978 (“FISA”) allows the government to avoid the warrant requirement when seeking to intercept communications between foreign powers or their agents, see Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended at 50 U.S.C. §§ 1801–1863), FISA itself generally mandates that before the government can begin wiretapping, it must submit an application to a special Foreign Intelligence Surveillance Court (“FISC”) for a determination of probable cause that the surveillance targets are foreign powers or agents, see 50 U.S.C. §§ 1803–1805. On tips from concerned officials, and after a year’s worth of negotiations with the Bush administration, the New York Times reported the sketchy details of an executive order issued just months after September 11, 2001, that authorized the National Security Agency to intercept communications between individuals in the United States and abroad without seeking a warrant from FISC. See Risen & Lichtblau, supra note 12, at A1. The program was kept strictly confidential: outside of the administration, only a small group of congressional representatives knew of the program. Id. After the surveillance was revealed, the President and other administration officials defended the program by arguing that the Authorization for Use of Military Force (“AUMF”), Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001) (codified at 50 U.S.C.A. § 1541 note (Authorization for Use of Military Force)), permitted the President to evade FISA. See Sims, supra, at 130–32. If the AUMF did not give the President this power, the administration argued, then FISA is an unconstitutional abrogation of the President’s inherent war powers. See id. at 133–39. In August 2006, a United States District Court judge in the Eastern District of Michigan rejected these arguments in a suit brought by potential targets of the program; the court held that the surveillance program violated the Fourth Amendment and the constitutional separation of powers, and it enjoined the government from continuing the surveillance. See ACLU v. Nat’l Sec. Agency, 430 F. Supp. 2d 754, 782 (E.D. Mich. 2006). After the ruling, President Bush defended the surveillance program and ordered the Justice Department to file an immediate appeal. See Eric Lichtblau, Bush Predicts Appeals Court Will Lift Ban on Wiretaps, N.Y. TIMES, Aug. 19, 2006, at A10.
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If an important aim of the Political Constitution Model is to vest ultimate responsibility for the resolution of constitutional issues in the people themselves, acting through politics and elections, then the President may have an obligation to take open stands that frame issues for public debate. Nevertheless, subject to a possible requirement of publicity, the Political Constitution Model would suggest the President has the constitutional authority to decide whether he is constitutionally bound to accept the judicial view in any particular case.

IV. THE PRESIDENT’S OBLIGATION TO OBEY FINAL JUDICIAL JUDGMENTS

The question how we ought to choose among these and other models of judicial and executive power under the Constitution is a hard one, to which the Constitution’s text and history yield no clear answer. By nearly all accounts, two constitutional provisions are centrally pertinent. Article II, section 3 makes it the obligation of the President to “take Care that the Laws be faithfully executed.” (Footnote 73 = U.S. CONST. art. II, § 3.) This reference to “the Laws” might subsume judicial judgments, which have it as their purpose to apply the Constitution and laws of the United States, but the inference is not linguistically necessary. The President’s duty to “take Care that the Laws be faithfully executed” raises the question: the laws as interpreted by which branch?

The other most relevant textual provision is Article III, section 2, which provides that “[t]he judicial Power shall extend to all Cases . . . arising under” the Constitution, laws, and treaties of the United States (Footnote 74 = U.S. CONST. art III, § 2, cl. 1). As noted above, it is arguable that the power to decide cases necessarily implies the power to decide them authoritatively (Footnote 75 = See supra note 61 and accompanying text), and authority in some cases depends on executive obedience. As Alexander Hamilton famously wrote in The Federalist No. 78, the judicial branch possesses “neither FORCE nor WILL . . . and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

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Footnote 76 = THE FEDERALIST NO. 78, at 433 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
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Nevertheless, the historical support for the position that presidents must always obey and enforce judicial judgments is less than wholly unequivocal, as I have indicated already. Some of our greatest presidents took a contrary view. Larry
Kramer’s recent historical work suggests that many other Americans did also in the
early years of constitutional history.

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Footnote 77 = See KRAMER, supra note 14, at 109, 207–26 (describing a “departmental” view according to which each branch of government must interpret the Constitution for itself and noting the gradual decline of that view).
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With the Constitution’s text and history being less than utterly conclusive, any choice among models of executive and judicial power should be informed by a normative judgment about which would be best in the sense of giving us the most desirable structure of government for the future.

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Footnote 78 = See RONALD DWORKIN, LAW’S EMPIRE 254–58 (1885) (summarizing judges’ obligation to find “the best constructive interpretation” of pertinent legal materials).
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Reading the Constitution in light of normative concerns illuminated by history, I believe the Finality of Judgments Model not only fits the text of Articles II and III tolerably well, but also reflects a better accommodation of competing considerations than either the Pure Judicial Supremacy Model or the Political Constitution Model. The Finality of Judgments Model accords the judicial branch a more potent check against executive overreaching than does the Political Constitution Model, and I welcome that result. Judicial decisions must have at least some degree of authoritativeness, including a capacity to bind the executive, for the judiciary—which lacks the power of “either the sword or the purse”79 – to be a genuinely co-equal branch in a government subject to the rule of law.80

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Footnote 79 = THE FEDERALIST NO. 78, supra note 76, at 433.
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Footnote 80 = For a critical discussion of the rule-of-law ideal, see Richard H. Fallon, Jr., “The Rule of Law” as a Concept in Constitutional Discourse, 97 COLUM. L. REV. 1 (1997).
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To my mind, it would be troubling indeed to allow the President to determine the outer limits of presidential power, especially in cases involving the individual liberty of citizens. Too many forces and incentives are likely to conduce to executive overreaching, especially in times of perceived crisis, and to an overvaluation of security in comparison with liberty.

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Footnote 81 = But cf. ERIC POSNER & ADRIAN VERMEULE, TERROR IN THE BALANCE 62–63 (Mark Tushnet ed., 2007) (arguing that fear can produce cognitive benefits and not just distortions).
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In this context the metaphor of checks and balances seems apt: the courts should be able to check the executive especially when it intrudes on citizens’ liberty.

At the same time, it seems a virtue of the Finality of Judgments Model that it leaves room for the accommodation of practical needs and popular sensibilities by allowing those who disagree with judicial decisions, including executive officials, to press the Supreme Court to reconsider its positions. When the Court’s stance is clear and resolute, resistance will be predictably futile, and executive officials proceeding in constitutional good faith should typically spare everyone the trouble and expense of litigation before a well-settled doctrine is once again enforced by the courts.

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Footnote 82 = Cf. Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 YALE L.J. 679, 725 (1989) (noting that the obligation of administrative agencies to acquiesce in judicial decisions that they oppose by accepting them as generally binding may depend on whether the judicially articulated law is in flux).
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But in matters of great practical moment or high constitutional principle—such as those involved in Dred Scott (Footnote 83 = 60 U.S. (19 How.) 393 (1857)), Lochner v. New York (Footnote 84 = 198 U.S. 45 (1905)), and, some would say, Roe v. Wade (Footnote 85 = 410 U.S. 113 (1973)) — the Pure Judicial Supremacy Model cedes more to courts than I would wish to cede. At the very least, politically accountable officials should be able to provoke the courts to reconsider issues with respect to which popular majorities find judicial rulings to be deeply objectionable. Continuing deliberation reflecting a broad range of views is frequently better than quick, once-and-for-all decisions by a small group, including the Justices of the Supreme Court.

In making these claims for the Finality of Judgments Model, I must acknowledge that my argument necessarily depends on tendencies and probabilities, not timeless truths. There is no denying that courts may sometimes err, and indeed may err disastrously, in their decisions of cases. Accordingly, it might seem prudent to qualify any endorsement of the Finality of Judgments Model with an exception for cases in which the courts commit grave errors. Under this imagined qualification, the President would be obliged to accede to judicial rulings in particular cases unless, in the President’s judgment, doing so would have unusually bad or even catastrophic consequences for the nation. Ex parte Merryman might appear to exemplify a case in which this proposed exception would apply (Footnote 86 = 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487)). If the judicial branch issued a disastrously dangerous ruling, showing itself unworthy of trust to make the decision it had reached, could it not then be said that the President had no constitutional obligation to obey, even though it would be his duty to obey judicial rulings in all other contexts for reasons expressed by the Finality of Judgments Model?

Tempting though it may be to draw this conclusion, the supporting argument moves in an unpersuasive circle. Any ultimate decision maker may err. It is no good to say that a decision maker is ultimate except when it errs, or even when it errs disastrously, for there is no clear, uncontroversial criterion of error. Ultimately, the Constitution must entrust decisions to one or another institution despite the possibility of mistake or abuse.

Recognizing that there is no perfect solution to the question of how power should be allocated between the judiciary and the President, I thus reaffirm what I have said already: we would do better, overall, to recognize that when the courts issue their judgments in particular cases, their determinations bind the executive branch with respect to those cases as a matter of constitutional law. Asserted in some contexts, this conclusion might appear banal. In debates about judicial power to bind the executive in matters bearing on national security, however, it has bite. It entails that the Bush administration would violate the Constitution if it defied a judicial order in any future case. It also implies that Lincoln, perhaps our greatest President, behaved unconstitutionally in Ex parte Merryman.

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