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

[johnkarls]

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WARTIME PRESIDENTS ABRAHAM LINCOLN AND FRANKLIN ROOSEVELT DEFY THE SUPREME COURT (continued)

V. ENFORCING THE PRESIDENT’S CONSTITUTIONAL OBLIGATIONS

To say that our greatest President violated the Constitution is not exactly to assert a paradox, but it may be sufficiently dissonant with what most of us are inclined to think about both Lincoln and the Constitution to merit two further reflections. First, although I believe that Lincoln was legally obliged to obey the Chief Justice’s ruling in Ex parte Merryman, I also think that he was morally justified in refusing to do so. The rule of law, which we rightly treasure, requires official obedience to law.

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Footnote 87 = See Fallon, supra note 80, at 8 (noting that the rule of law requires obedience of law by officials as well as ordinary citizens).
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For a high official to defy the law is thus an inescapably serious, morally fraught act. Typically, such a step both would and should be regarded as corrupt, tyrannical, or treasonous. Nevertheless, it is a mistake to conflate what I have elsewhere called legal legitimacy with moral legitimacy.

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Footnote 88 = See Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 HARV. L. REV. 1787, 1794–1801 (2005) (distinguishing legal, sociological, and moral concepts of legitimacy).
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There are rare cases in which adherence to the law, which is the essence of legal legitimacy, is not necessarily the paramount virtue even for the highest public officials (Footnote 89 = See id. at 1844–47).

To take a plain and familiar example, we honor, rather than revile, the colonists who chose to defy the legal authority of the British government in 1776. We similarly think the delegates to the Constitutional Convention in 1787 were at least excused, and probably justified, in refusing to accept the constraints imposed by state law and the then-operative Articles of Confederation, which would not have permitted the establishment of a new constitution without the unanimous consent of the state legislatures (as opposed to the ratification by conventions of the people in as few as nine states, as provided for in Article V of our current Constitution).

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Footnote 90 = See id. at 1803–04 & n.56 (explaining debates about whether the drafting and ratification of the Constitution accorded with prior law and adopting a negative view).
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To put the point bluntly, our current scheme of government arose from defiance of then-operative law justified in the name of a higher moral or political good.

Lincoln’s case was different, of course. He sought to preserve a Constitution that he thought generally deserving of fidelity, not to displace a governmental regime that was tyrannical or unworkable. Moreover, it is dangerous to countenance arguments that public officials can be morally justified in acting contrary to law in the name of a higher public good. To ready an embrace of arguments of this kind invites corruption and tyranny. It is equally dangerous to hold that the law, or the Constitution, always permits whatever seems prudent in the face of exigency. We should not delude ourselves that our Constitution is perfect. In the absence of perfection, we get a better understanding of both law and morality and of the relation of the one to the other if we insist on an analytical separation between legal obligations and moral obligations, even in the constitutional domain.

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Footnote 91 = This, of course, is a central claim of legal “positivism,” and it is famously contested
and contestable. See generally Richard H. Fallon, Jr., Reflections on Dworkin and the Two
Faces of Law, 67 NOTRE DAME L. REV. 553 (1992) (defending the positivist position).
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Nevertheless, Merryman seems to me to be a very rare case in which the practical imperatives confronting the President morally justified his violation of constitutional law. For Lincoln, the continuation of the nation as a political unit was at risk, as, he thought, was the principle of democratic self-government on a national scale, which could not survive insofar as disgruntled states or other subunits could successfully secede.

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Footnote 92 = See Lincoln, supra note 64, at 268 (“[T]he central idea of secession, is the essence of anarchy. A majority, held in restraint by constitutional checks, and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it, does, of necessity, fly to anarchy or to despotism. Unanimity is impossible; the rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy, or despotism in some form, is all that is left.”).
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Under the circumstances, Lincoln’s actions displayed not the ordinarily demanded virtue of presidential obedience to law, but what political theorists have sometimes described as Machiavellian virtu—“the skill and courage by which men are able to dominate events and fortune” for good ends,93 sometimes, if necessary, without regard to the quotidian legal and ethical norms that it is their ultimate purpose to sustain.94

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Footnote 93 = See J.G.A. POCOCK, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION 92 (1975).
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Footnote 94 = See id. (noting that “it was possible for virtu to lose its Christian and even its ethical meaning altogether”).
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If an exigency comparable to that facing Lincoln in the most vulnerable days of the Civil War has ever confronted any other President, however, I am not aware of it. This is not to say that no other President ever has been or would be morally justified in disobeying a judicial order. But I would insist that presidential disobedience of judicial rulings inherently threatens the rule of law that we rightly cherish and that claims of extra-legal justification should be viewed with high suspicion.

My second point, which is perhaps too obvious to be called a point, is that we make a mistake if we assume that the legal obligations of the President, as defined by the courts under the Finality of Judgments Model, will necessarily be enforced. When we turn from the identification of legal obligations to the enforcement of legal obligations, no constitution could, and ours certainly does not, guarantee that judicial orders either will be obeyed by or enforced against the executive branch in every case. To take the best-known example, after Lincoln defied the court in Merryman without bothering to appeal,95 Merryman remained in jail, and Lincoln himself suffered no significant repercussions.

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Footnote 95 = See Jeffrey D. Jackson, The Power to Suspend Habeas Corpus: An Answer from the Arguments Surrounding Ex Parte Merryman, 34 U. BALT. L. REV. 11, 23 (2004).
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The Congress stood behind the President, and the people of the non-seceding states continued to accept his legal and moral authority in executing his office and prosecuting the Civil War.

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Footnote 96 = Lincoln was of course subjected to criticism in the press, see id. at 20, and the constitutional legitimacy of his actions was widely debated by legal scholars of the day, see id. at 22.
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In light of the powerful reasons described above for thinking that Lincoln’s behavior was morally justified even though not legally authorized, public acquiescence in his defiance of judicial authority seems to have been wholly warranted under the extraordinary circumstances.

That the Constitution was not enforced against Lincoln is a contingent historical fact, however, and not the application of a necessary truth about presidential power. Enforcement of judicial orders against the President is by no means impossible. To imagine what enforcement might mean, we need only consider the partly parallel but crucially different historical episode that gave rise to the Nixon Tapes case (Footnote 97 = United States v. Nixon, 418 U.S. 683 (1974)). In oral argument before the Supreme Court, Nixon’s lawyer, James St. Clair, hinted that the President might defy a judicial order that he believed to violate an inherent presidential prerogative to maintain the confidentiality of White House deliberations.98 Yet when Nixon was ordered to surrender the tapes, he meekly complied.99

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Footnote 98 = Alexander & Schauer, supra note 1, at 1364; see Transcript of Oral Argument at 500, Nixon, 418 U.S. 683 (1974) (Nos. 73-1766 & 73-1834), reprinted in 3 CONSTITUTIONAL ASPECTS OF WATERGATE: DOCUMENTS & MATERIALS 648, 671 (A. Stephen Boyan, Jr, ed., 1976) (“This is being submitted to this Court for its guidance and judgment with respect to the law. The President, on the other hand, has his obligations under the Constitution.”).
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Footnote 99 = Alexander & Schauer, supra note 1, at 1364 & n.23.
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He really had no choice. Had he refused, impeachment and conviction almost surely would have followed.

When Richard Nixon’s position in the Nixon Tapes case is juxtaposed with that of Abraham Lincoln in Ex parte Merryman, among the important lessons is this: even if the Finality of Judgments Model provides the best account of the President’s legal obligations, the Political Constitution Model, which I rejected as normatively unattractive, nevertheless helps to highlight an important, non-normative, descriptive truth about how our constitutional order actually, and indeed necessarily, operates. Because the judicial branch possesses no brute power to compel obedience to its judgments, if its orders are to be enforced, the enforcement must come from elsewhere, in a domain in which constitutional law blends with constitutional politics. In other words, the ultimate authority to enforce the Constitution against the President necessarily, inescapably resides in Congress, through its power of impeachment, and in what Larry Kramer calls “the people
themselves.” (Footnote 100 = See KRAMER, supra note 14, at 7.)

At the present time, it seems safe to assume that in any case in which the President defied a direct judicial order, Congress and the people would begin with strong presumptions that it was lawless and unconstitutional for the President to disobey and that a lawless President cannot be tolerated. In acceding to direct judicial mandates in nearly all cases in constitutional history, presidents have probably made political as well as legal calculations in at least some instances. In other words, they have likely complied with judicial orders, not only because they felt that the Constitution obliged them to do so as a matter of law, but also because they feared such consequences as disgrace and impeachment if they did not comply. As the case of Lincoln and Ex parte Merryman reminds us, however, times and public attitudes can change, and the people may be unusually willing to accept executive defiance of judicial orders in situations of actual or perceived emergency. A President, including the current President, could always decide to defy a court, including the Supreme Court, and to take his or her chances with Congress and the American people.

To say this is not normatively to embrace a state of affairs in which it is always an open question whether a President who defied a judicial order would be sanctioned or, to the contrary, might possibly even be applauded for doing so. It is simply to recognize that the fact could not be otherwise. Or, to put the point slightly differently, one need not endorse the Political Constitution Model—which invites the President to reject judicial orders—in order to recognize that although the responsibility for enforcing the Constitution against the President may begin with the courts, it ultimately rests, as it must, with Congress and the people themselves.

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Footnote 101 = See 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 app. A, at 85 (Max
Farrand ed., Yale Univ. Press 1937) (1911).
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