Emily Gootzeit*
Structured under a separation-of-powers model, the Founding Fathers purposefully crafted the United States government with checks and balances to prevent one branch of government from becoming too powerful.[1] However, the Constitution has a built-in loophole for a power-hungry President: the ability to independently review the Constitution.
In what has been deemed the “Supremacy Clause,” the Constitution self identifies as the “supreme Law of the Land.”[2] In the following paragraph, the Constitution states that members of the branches “shall be bound by Oath or Affirmation, to support this Constitution,”[3] thus rendering each branch of the United States government constitutionally empowered to support the Constitution.
The President of the United States has the power to interpret the Constitution. This power is in part rooted in the oath the President takes when he or she takes office. When the President takes office, he or she takes an oath under Article II, Section 1, Clause 8 of the U.S. Constitution, solemnly swearing to “faithfully execute the Office of the President” and to “preserve, protect, and defend the Constitution.”[4] This oath symbolizes that the President’s “great first duty”[5] is to “preserve, protect, and defend the Constitution.”[6] To uphold that duty, the President must be able to interpret the Constitution. When there is a judicial judgment or congressional statute that the President believes to be unconstitutional, to “preserve, protect, and defend the Constitution”[7] the President must first interpret the Constitution to decide whether that judgment or statute is unconstitutional and then refuse to execute that judgment or statute if he or she concludes in good faith that it is unconstitutional.
President Lincoln exercised this power.[8] Shortly after his First Inaugural Address, President Lincoln was faced with the pressing issue of secession.[9] Maryland was especially concerning because it was home to the Nation’s Capital, and it was dangerously close to secession.[10] With the Nation on the brink of civil war and Congress not in session, President Lincoln suspended the writ of habeas corpus for the purpose of public safety to allow troops to suppress secessionist violence.[11] After President Lincoln’s suspension of the writ, secessionist sympathizer John Merryman was arrested, and he sent a petition for a writ of habeas corpus to Chief Justice Taney, a college peer of Merryman’s father and the author of the Dred Scott decision.[12] Chief Justice Taney ultimately held President Lincoln’s suspension of the writ of habeas corpus unconstitutional.[13] However, President Lincoln refused to execute Chief Justice Taney’s judicial judgment in Ex parte Merryman,[14] claiming the President does have the right to suspend the privilege.[15]
Looking back, it is easy to support President Lincoln’s decision to go against the Supreme Court because it was necessary to “preserve, protect, and defend the Constitution.”[16] In fact, modern society proudly looks back upon such a strong-willed President. Because of President Lincoln’s actions, Maryland never seceded, and the Capital was never isolated.[17]But it was extremely controversial at the time.[18] President Lincoln was widely criticized and accused of being a “tyrant” and a “dictator.”[19] Importantly, it is very likely that if a president chose to exercise this power today, it would be a complete political nightmare.
A president actually refusing to execute a judgment or a statute because he or she concluded it to be unconstitutional, while constitutionally legitimate, would have terrible implications. First, closer examination of this notion would greatly confuse the separation-of-powers doctrine and extremely devalue judicial review. In Marbury v. Madison, Chief Justice Marshall justified judicial review in part by pointing to the requirement of each branch to take an oath supporting the Constitution.[20] Chief Justice Marshall himself wrote, “Why does a judge swear to discharge his duties agreeably to the constitution [sic] of the United States, if that constitution forms no rule for his government? if [sic] it is closed upon him, and cannot be inspected by him?”[21] Chief Justice Marshall went on to further justify judicial review by noting the supremacy of the Constitution and that “courts, as well as other departments, are bound by that instrument.”[22] However, being bound by a supreme Constitution and taking an oath to support it, Chief Justice Marshall’s logic also justifies the existence of executive- and congressional-review powers. Thus, by nature, judicial review would be rendered essentially meaningless if it is accepted that the President can constitutionally disregard a judgment or statute.
Second, a president wielding the power to refuse to execute a judgment or a statute today would not only be a political nightmare, but it would also be seen as tyrannical. Because that power could so easily be abused, with an uneducated, overly ambitious, or downright wicked president, that power would be extremely dangerous. As such, even though the Constitution itself authorizes presidential constitutional review, society is not ready for a president to routinely wield that power. Thus, unless a president is facing a dire situation like that of President Lincoln, he or she would be hard-pressed to actually exercise it because, due to the potential political ramifications, it should only be used in extreme circumstances.
* Emily Gootzeit, J.D. Candidate, University of St. Thomas School of Law Class of 2023, Senior Editor.
[1] Suspension of the Privilege of the Writ of Habeas Corpus, 10 U.S. Op. Att’y. Gen. 74, 76 (1861).
[2] U.S. Const. art. VI.
[3] Id.
[4] U.S. Const. art. II, § 1, cl. 8.
[5] Suspension of the Privilege, supra note 1, at 91.
[6] U.S. Const. art. II, § 1, cl. 8.
[7] Id.
[8] Sherrill Halbert, The Suspension of the Writ of Habeas Corpus by President Lincoln, 2 Am. J. Legal Hist. 95, 97–98 (1958).
[9] Id. at 96.
[10] Id.
[11] Id. at 101–02.
[12] Id. at 99.
[13] Ex parte Merryman, 17 F. Cas. 144, 152 (D. Md. 1861).
[14] Halbert, supra note 8, at 101.
[15] Id.
[16] U.S. Const. art. II, § 1, cl. 8.
[17] Halbert, supra note 8, at 98.
[18] Id. at 101.
[19] Id.
[20] Marbury v. Madison, 5 U.S. 137, 180 (1803).
[21] Id.
[22] Id. (emphasis deleted).
University of St. Thomas Law Journal 
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