Abstract
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.
Recommended Citation
Fallon, Richard H. Jr.
(2007)
"Executive Power and the Political Constitution,"
Utah Law Review: Vol. 2007:
No.
1, Article 1.
Available at:
https://dc.law.utah.edu/ulr/vol2007/iss1/1