The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952 — John Shaqi
The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952
History
The Constitution of the United States of America: Analysis and Interpretation: Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952
Constitutional law -- United States; Constitutions -- United States
Also manifest is the debt of Lincoln's message of July 4, 1861, to these
opinions. Here in so many words the President lays claim to "the war
power", partly on the ground of his duty to "take care that the laws be
faithfully executed", partly in reliance on his powers as
Commander-in-Chief, incidentally furnishing thereby a formula which has
frequently reappeared in opinions of Attorneys-General in recent years.
Nor did Lincoln ever relinquish the belief that on the one ground or the
other he possessed extraordinary resources of power which Congress
lacked and the exercise of which it could not control--an idea in the
conscientious pursuit of which his successor came to the verge of utter
disaster.
When first confronted with Lincoln's theory in the Prize Cases,[47] in
the midst of war, a closely divided Court treated it with abundant
indulgence; but in _Ex parte_ Milligan[48] another closely divided Court
swung violently to the other direction, adopting the comfortable
position that the normal powers of the government were perfectly
adequate to any emergency that could possibly arise, and citing the war
just "happily terminated" in proof. But once again the principle of
equilibrium asserted itself. Five months after Milligan, the same Bench
held unanimously in Mississippi _v._ Johnson[49] that the President is
not accountable to any court save that of impeachment either for the
nonperformance of his constitutional duties or for the exceeding of his
constitutional powers.
This was in the 1866-1867 term of Court. Sixteen years later, in 1882,
Justice Samuel Miller gave classic expression to the principle of "a
government of laws and not of men" in these words: "No man is so high
that he is above the law.... All officers are creatures of the law and
are bound to obey it."[50] Eight years later this same great Judge
queried whether the President's duty to take care that the laws be
faithfully executed is "limited to the enforcement of acts of Congress
or of treaties according to their express terms," whether it did not
also embrace "the rights, duties, and obligations growing out of the
Constitution itself ... and all the protection implied by the nature of
the government under the Constitution."[51] Then in 1895, in the Debs
Case,[52] the Court sustained unanimously the right of the National
Executive to go into the federal courts and secure an injunction against
striking railway employees who were interfering with interstate
commerce, although it was conceded that there was no statutory basis for
such action. The opinion of the Court extends the logic of the holding
to any widespread public interest.
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