Take Up Your Pen: Unilateral Presidential Directives in American Politics

Chapter 3. Judicial Sanction

chapter three ................. Judicial Sanction This was a public act, of which all courts of the United States are bound to take notice, and to which all courts are bound to give effect. —Chief Justice Chase, Armstrong v. United States (1871) Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. —Justice Jackson, Youngstown Sheet & Tube Co. v. Sawyer (1952) Unilateral presidential directives are not in the Constitution but have been essentially read into it, even though they are arguably in tension with its premises of separation of powers and checks and balances. Like judicial review, unilateral presidential directives made a transition from a starting point of constitutional silence, through a period of constitutional contestation , to an enduring consensus of constitutional consonance. This chapter focuses on a part of that development, namely the early judicial sanction of executive orders and proclamations and how it informs debates about more recent directives. The constitutional legitimacy of unilateral presidential directives derives in large part from constitutional ambiguity. Since the Constitution does not specifically mention unilateral presidential directives per se, their constitutional status is largely bound up with the broader question of the nature and scope of executive power. However, the Constitution’s treatment of the executive is highly ambiguous, and this ambiguity does not Judicial Sanction 55 dissipate when one considers related resources in political theory and English and early American history. There is simply a persistent plurality of plausible competing conceptions of presidential power. Given the persistent ambiguity of executive power at the levels of the constitutional text, constitutional theory, and pre-constitutional history, the most sensible way to understand the constitutional propriety of unilateral presidential directives seems to be to examine how they have developed in the political realm, specifically in terms of the interbranch struggle over constitutional politics. And a good way to track that development is by examining case law on the matter. Such cases do not exhaust the debate about the constitutionality of unilateral presidential directives, but they do constitute a crucial part of it. Congressional legislation might offer another way to track this, but there is very little legislation that addresses the tools of unilateral presidential policymaking in a direct yet general way.1 There are numerous instances in which Congress has passed legislation to authorize specific executive orders or proclamations, either prospectively or retroactively, but many of these laws have been considered by the judiciary and are therefore largely captured by a focus on case law.2 Moreover, a focus on court cases may facilitate analysis at a higher level of generality than an examination of legislation could, as court cases can demonstrate how the polity officially seeks to render its abstract ideals concrete in a principled way.3 Again, even though unilateral presidential directives are not in the Constitution and are arguably in tension with parts of it, they have nevertheless been effectively read into it. My aim here is to trace that development through early judicial decisions. Insofar as courts follow the principle of stare decisis, a focus on early precedents is appropriate at the theoretical level; and insofar as early cases served largely to legitimate unilateral presidential directives, such a focus is also appropriate empirically. Cases The question of the constitutionality of unilateral presidential directives has not been a narrowly focused area of jurisprudence. Instead, it generally appears in the course of a variety of other areas of substantive concern, periodically cropping up at the margins and only rarely getting the direct attention of courts. For that reason, most of the following cases concern 56 Chapter 3 the propriety only of particular executive orders or proclamations, rather than the general question of their overall legitimacy as a presidential tool. Many of these cases may therefore be unfamiliar, but they are nevertheless crucial to an understanding of unilateral presidential directives and perhaps also of presidential power in general. In identifying the cases that follow, I performed a computerized search of all federal cases dealing with executive orders or proclamations, I used a citation service to track certain precedents over time, and I relied on the small scholarly literature on executive orders, particularly on scattered parts of Glendon Schubert’s book The Presidency in the Courts (1957).4 What follows is not a strictly comprehensive accounting of all relevant cases, but it...