Immunity of the President from Judicial Control.—Being at the head of a coördinate department of the government, the President, unlike other public officers, is not subject to the control of the courts. They cannot issue processes against him, or restrain him or compel him to perform any act. During the trial of Aaron Burr for treason, Chief Justice Marshall issued a subpœna directed to President Jefferson requiring him to produce a certain paper relating to Burr's acts, but the President refused to obey the writ, declaring that if the chief executive could be compelled to obey the processes of the courts he might be prevented from the discharge of his duties. Even if the President were to commit an act of violence, he could not be arrested or in any way restrained of his liberty. The only remedy against acts of violence committed by him is impeachment by the house of representatives and trial by the Senate. If convicted, he must be deprived of his office, after which his immunity ends and he is liable to prosecution and trial in the ordinary courts as any other offender. The principle upon which the President is exempt from the control of the courts is not that he can do no wrong, but that if he were subject to judicial restraint and compelled to obey the processes of the courts, the administration of the duties of his high office might be interfered with.
Nevertheless, the Supreme Court does not hesitate to exercise control over the subordinates through whom the President acts in most cases, and it will refuse to sanction orders or regulations promulgated by him if they are unconstitutional. To this extent, his acts are subject to judicial control.
References.—Andrews, Manual of the Constitution, pp. 180-201. Beard, American Government and Politics, ch. x. Bryce, The American Commonwealth (abridged edition), ch. v. Fairlie, National Administration, chs. i-ii. Harrison, This Country of Ours, ch. vi. Hinsdale, American Government, ch. xxxii.
Documentary and Illustrative Material.—1. Copy of an inaugural address of the President. 2. Copy of an annual message of the President. 3. Copies of executive orders and proclamations. 4. Copies of veto messages.
Research Questions
1. What is your opinion of Sir Henry Maine's saying that the President of the United States is but a revised edition of the English King?
2. How do the powers of the President compare in importance and scope with those of the King of England?
3. Have the President's powers increased or decreased since 1789? Give your reasons.
4. Name some of the Presidents who were notable for the vigorous exercise of executive power.
5. What is your opinion of the position taken by President Roosevelt that the power of the President should be increased by executive interpretation and judicial construction?
6. Is the President the judge of the extent and limits of his own powers? If not, what authority is?