HKB
PRESIDENTIAL IMMUNITY FROM JUDICIAL DIRECTION
By the decision of the Court in State of Mississippi v. Johnson,[467] in 1867, the President was put beyond the reach of judicial direction in the exercise of any of his powers, whether constitutional or statutory, political or otherwise. An application for an injunction to forbid President Johnson to enforce the Reconstruction Acts, on the ground of their unconstitutionality, was answered by Attorney General Stanbery as follows: "It is not upon any peculiar immunity that the individual has who happens to be President; upon any idea that he cannot do wrong; upon any idea that there is any particular sanctity belonging to him as an individual, as is the case with one who has royal blood in his veins; but it is on account of the office that he holds that I say the President of the United States is above the process of any court or the jurisdiction of any court to bring him to account as President. There is only one court or quasi court that he can be called upon to answer to for any dereliction of duty, for doing anything that is contrary to law or failing to do anything which is according to law, and that is not this tribunal but one that sits in another chamber of this Capitol."[468] Speaking by Chief Justice Chase, the Court agreed: "The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance. The impropriety of such interference will be clearly seen upon consideration of its possible consequences. Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would [not?] the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?"[469] The Court further indicated that the same principle would apply to an application for a mandamus ordering the President to exercise any of his powers.
THE PRESIDENT'S SUBORDINATES AND THE COURTS
But while the courts are unable to compel the President to act or to keep him from acting, yet his acts, when performed are in proper cases subject to judicial review and disallowance.[470] Moreover, the subordinates through whom he acts may always be prohibited by writ of injunction from doing a threatened illegal act which might lead to irreparable damage,[471] or be compelled by writ of mandamus to perform a duty definitely required by law,[472] such suits being usually brought in the United States District Court for the District of Columbia.[473] Also, by common law principles, a subordinate executive officer is personally liable under the ordinary law for any act done in excess of authority.[474] Indeed, by a recent holding, district courts of the United States are bound to entertain suits for damages arising out of alleged violation of plaintiff's constitutional rights, even though as the law now stands the Court is powerless to award damages.[475] But Congress may, in certain cases, exonerate the officer by a so-called act of indemnity,[476] while as the law stands at present, any officer of the United States who is charged with a crime under the laws of a State for an act done under the authority of the United States is entitled to have his case transferred to the national courts.[477]