presidents, war, and *statutes*

Sanford Levinson SLevinson at law.utexas.edu
Wed Dec 21 20:28:04 PST 2005


I agree with Gordon about what Marbury said.  But, then, doesn't it
stand as a case demonstrating the inability of the Court to check the
President inasmuch as Marbury certainly never got the commission that
the Court said he was entitled to (even if it could not order Madison to
deliver it).  
 
What about Ex parte Merryman, which seems similar in every respect to
Marbury, i.e., a strong (and probably correct) denunciation of the
President with absolutely no affect on the President's behavior.
(Though it is true, I think, that Merryman was ultimately released, but
not, I also believe, "because" of anything Taney said about the
unconstitutionality of his detention.
 
sandy

________________________________

From: owner-lawcourts-l at usc.edu [mailto:owner-lawcourts-l at usc.edu] On
Behalf Of Gordon Silverstein
Sent: Wednesday, December 21, 2005 4:29 PM
To: LAWCOURTS-L at USC.EDU; Conlawprof at lists.ucla.edu
Subject: RE: presidents, war, and *statutes*


 
I put Marbury in the list knowing it would draw Sandy out ! It really is
like catnip for him!
 
But the fact is, it was a ruling that explicitly said the Executive had
exceeded constitutional limits. That it was not enforced is true, of
course, but it does stand as a case where the court said to the
President, thus far, and no further.
 
(Also -- add Little v Barreme; NY Times v. U.S.; and Hamdi v. Rumsfeld
for a couple more off the top of my head.)
 
- Gordon
 

________________________________

From: Sanford Levinson [mailto:SLevinson at law.utexas.edu] 
Sent: Wednesday, December 21, 2005 1:17 PM
To: gsilver at berkeley.edu; RJLipkin at aol.com; LAWCOURTS-L at USC.EDU;
Conlawprof at lists.ucla.edu
Subject: RE: presidents, war, and *statutes*


Marbury certainly counts as a denunciation of illegitimate executive
power, but it scarcely counts as a "checking" inasmuch as Marshall
through up his hands and said there's nothing the Court can do.  
 
sandy

________________________________

From: owner-lawcourts-l at usc.edu [mailto:owner-lawcourts-l at usc.edu] On
Behalf Of Gordon Silverstein
Sent: Wednesday, December 21, 2005 4:01 PM
To: RJLipkin at aol.com; LAWCOURTS-L at USC.EDU; Conlawprof at lists.ucla.edu
Subject: RE: presidents, war, and *statutes*


How about the steel seizure case; U.S. v Nixon; Ex Parte Milligan; and
Marbury v. Madison for a couple of starters ... 
 


________________________________

From: Sanford Levinson [mailto:SLevinson at law.utexas.edu] 
Sent: Wednesday, December 21, 2005 1:17 PM
To: gsilver at berkeley.edu; RJLipkin at aol.com; LAWCOURTS-L at USC.EDU;
Conlawprof at lists.ucla.edu
Subject: RE: presidents, war, and *statutes*


Marbury certainly counts as a denunciation of illegitimate executive
power, but it scarcely counts as a "checking" inasmuch as Marshall
through up his hands and said there's nothing the Court can do.  
 
sandy

________________________________

From: owner-lawcourts-l at usc.edu [mailto:owner-lawcourts-l at usc.edu] On
Behalf Of Gordon Silverstein
Sent: Wednesday, December 21, 2005 4:01 PM
To: RJLipkin at aol.com; LAWCOURTS-L at USC.EDU; Conlawprof at lists.ucla.edu
Subject: RE: presidents, war, and *statutes*


How about the steel seizure case; U.S. v Nixon; Ex Parte Milligan; and
Marbury v. Madison for a couple of starters ... 
 
 

________________________________

From: owner-lawcourts-l at usc.edu [mailto:owner-lawcourts-l at usc.edu] On
Behalf Of RJLipkin at aol.com
Sent: Wednesday, December 21, 2005 10:48 AM
To: LAWCOURTS-L at USC.EDU; Conlawprof at lists.ucla.edu
Subject: Re: presidents, war, and *statutes*


        Is there any literature on instances of the Court checking what
it regards as constitutionally illegitimate assertions of executive
power?
 
Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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