56 Pages Posted: 17 Dec 2007 Last revised: 13 Aug 2008
Date Written: January 14, 2008
When an Article III court decides a case, and the President disagrees with the outcome, what can he do about it? Existing scholarship generally takes two views. Some scholars argue that the President has general authority to review these judgments on their merits and decide whether to enforce them. Others believe that the President has an unqualified duty to obey court judgments no matter what. This paper challenges both of those views. Drawing on conventional constitutional history as well as the private law of judgments, this paper defends a new view of the judiciary's Judgment Power. Judgments are binding on the President, who must enforce them even if he disagrees with them. However, the President is entitled to ignore a judgment if the issuing court lacked jurisdiction over the case in question. This thesis also has implications for the role of the judiciary in the constitutional structure, and for evaluating President Lincoln's conduct in Ex parte Merryman.
Keywords: Jurisdiction, Judgments, President, Judicial Power, Enforcement, Merryman, Jurisdiction, Constitution, Constitutional Law
JEL Classification: K39, K49
Suggested Citation: Suggested Citation
Baude, William, The Judgment Power (January 14, 2008). Georgetown Law Journal, Vol. 96, 2008. Available at SSRN: https://ssrn.com/abstract=1073942