ArtII.S3.3.4 The President as Law Interpreter

Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The power accruing to the President from his function of law interpretation preparatory to law enforcement is daily illustrated in relation to such statutes as the Anti-Trust Acts, the Taft-Hartley Act, the Internal Security Act, and many lesser statutes. Nor is this the whole story. Not only do all presidential regulations and orders based on statutes that vest power in him or on his own constitutional powers have the force of law, provided they do not transgress the Court’s reading of such statutes or of the Constitution, 1 but he sometimes makes law in a more special sense. In the famous Neagle case, 2 an order of the Attorney General to a United States marshal to protect a Justice of the Supreme Court whose life has been threatened by a suitor was attributed to the President and held to be a law of the United States in the sense of section 753 of the Revised Statutes, and as such to afford basis for a writ of habeas corpus transferring the marshal, who had killed the attacker, from state to national custody. Speaking for the Court, Justice Miller inquired: Is this duty [the duty of the President to take care that the laws be faithfully executed] limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution?3 Obviously, an affirmative answer is assumed to the second branch of this inquiry, an assumption that is borne out by numerous precedents. And, in United States v. Midwest Oil Co., 4 the Court ruled that the President had, by dint of repeated assertion of it from an early date, acquired the right to withdraw, via the Land Department, public lands, both mineral and non-mineral, from private acquisition, Congress having never repudiated the practice.

Footnotes

  1.  Jump to essay-1United States v. Eliason, 41 U.S. (16 Pet.) 291, 301-02 (1842); Kurtz v. Moffitt, 115 U.S. 487, 503 (1885); Smith v. Whitney, 116 U.S. 167, 180-81 (1886). For an analysis of the approach to determining the validity of presidential, or other executive, regulations and orders under purported congressional delegations or implied executive power, see Chrysler Corp. v. Brown, 441 U.S. 281, 301-16 (1979).
  2.  Jump to essay-2In re Neagle, 135 U.S. 1 (1890).
  3.  Jump to essay-3135 U.S. at 64. The phrase, a law of the United States, came from the Act of March 2, 1833 (4 Stat. 632). However, in the Act of June 25, 1948, 62 Stat. 965, 28 U.S.C. § 2241(c)(2), the phrase is replaced by the term, an act of Congress, thereby eliminating the basis of the holding in Neagle.
  4.  Jump to essay-4236 U.S. 459 (1915). See also Mason v. United States, 260 U.S. 545 (1923).