How Much Care Do Presidents Have to Take?

In United States v. Texas, the Supreme Court has put forth a question on the definition of the take-care clause, which in the past been difficult to decipher.

They don’t make justices like the late Stephen J. Field any more.

That’s probably a good thing. Field was appointed to a tenth seat on the Court by Abraham Lincoln in 1863, and stuck around for 34 years. Ian Millhiser, author of Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted, calls Field “the worst Justice in the history of the Court.” That’s quite an honor. By comparison, today’s grouchiest justice would be Captain Kangaroo—Field also had to beat out Samuel “Old Bacon Face” Chase, who rampaged up and down the Eastern seaboard tippling port and jailing Jeffersonians, and James “Scrooge” McReynolds, such a deep-dyed bigot that he would walk out of conference when one of his Jewish colleagues spoke.

Stephen Field beats them all, Millhiser told me: “Field was nasty on the bench and he was nasty off the bench.”

But he was also interesting: probably the only justice to wear a coat specially tailored so that he could fire pistols through both pockets at once, and almost certainly the only justice to be arrested for murder while on the bench.

I’m reminded of the arrest and its aftermath by a controversy that has just hit the Court’s inbox. United States v. Texas is a challenge by a group of state governments to the administration’s new program allowing “deferred action” on some undocumented aliens—extending protection for three years against deportation, and authorization to work lawfully in the U.S. during that time.

As it came to the Court, this was a statutory dispute. The administration, relying on a 33-page opinion from the Office of Legal Counsel, argues that the Immigration and Nationality Act explicitly gives the secretary of homeland security the discretion to set up such a program. The states respond that the statute does not justify the program. It’s the kind of argument courts resolve all the time.

When the Court granted cert., however, it directed the parties to brief another question—whether the administration’s new program violates Article II § 3 of the Constitution, which requires the president to “take care that the laws be faithfully executed.”

It may be that, as some have suggested, the Court is just trying to give the case a complete resolution. (Texas had raised the “take care” issue below, but the lower courts did not decide it.) On the other hand, there may be some on the high court who buy into the legal right’s claims that Obama has been a uniquely autocratic president, eclipsing, for example, George W. Bush. In that view, the “deferred action” program was not an interpretation of the INA—it was a “suspension” or a “rewriting,” displacing the law with illicit presidential policy. A serious test of the take-care clause would turn an ordinary statutory dispute into a potential constitutional confrontation.

Nobody knows what the take-care clause really means. (Lyle Deniston gave a good explanation of the questions in a Thursday post at Constitution Daily.) Is it a limit on the president’s authority or does it add to it? Is it a personal duty of the president or does it extend to the entire executive branch? Is a president’s “faithfulness” a judicial judgment at all, or a “political question” to be decided by Congress and the voters?

Some presidents have suggested that the clause adds a kind of flexibility to executive authority—that if the law or the Constitution assigns the president a duty, he or she must have adequate means to carry it out. The opposite view holds that the clause is purely a limit—perhaps in extreme cases placing presidential discretion under the supervision of the courts.

In 1861, Lincoln ordered the arrest of a Maryland militia officer suspected of aiding the Confederacy. Chief Justice Roger Taney (also suspected of Southern sympathies) issued a writ of habeas corpus; Lincoln ordered General George Cadwalader to ignore it. Taney wrote an opinion that argued that the president did not have the authority to suspend habeas corpus. He added that to execute the laws at all—that under the take-care clause, “he acts in subordination to judicial authority, assisting it to execute its process and enforce its judgments.” In a message to Congress, Lincoln famously replied, “The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States.  . . . [A]re all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” (Congress eventually sided with Lincoln.)

So is the clause intended to buttress judicial power, or a statement that the executive has the tools needed to make sure that federal law and the Constitution themselves are not stymied by too narrow a reading, or some combination of the two? Perhaps the Civil War is too dramatic a setting to offer much in the way of clarity.

So consider this hypothetical instead: Suppose the written law did not bar the assassination of a Supreme Court justice. Would the attorney general have the power to prevent it anyway?

OK, not a hypothetical; it was the question presented in a 1890 case called Cunningham v. Neagle—starring our new old friend Stephen Field. Cunningham arises out of what 19th-century journalists called a “rencounter” between the crusty Justice Field and his former judicial colleague David Terry on August 14, 1889—one that left Terry dead, and Field and Deputy U.S. Marshal David Neagle in a California hoosegow.

One historian wrote that Terry “was a six-foot, three-inch giant and customarily carried a bowie knife tucked in his bosom.” Terry had been chief justice of the California Supreme Court when Field was elected to that court in 1857. Shortly afterwards, Terry resigned to fight a duel. Terry killed his antagonist, who had been a friend of Field’s. Field took offense—and, as one contemporary wrote, “when Field hates, he hates for keeps.”

After a stint in the Confederate Army, Terry returned to California to practice law. As a private lawyer, he represented Sarah Althea Hill, a volatile beauty who had briefly been the mistress of a powerful San Francisco lawyer. When he refused her pleas for marriage, she drank poison in his office. She recovered, though, and promptly made an arrangement with another suitor, former Nevada Senator William Sharon—a room in San Francisco's Grand Hotel and a $500 a month stipend. The relationship soured, however, and Sharon had the hotel manager remove the door from her hotel suite, and then evict her.

Not long afterwards, Hill, represented by Terry, filed suit against Sharon. She produced a document that, she claimed, proclaimed the two of them married—and thus entitled her to a half share in $10 million profit from his Nevada silver mines. As Hill’s lawyer, Terry was, to say the least, zealous—after Sharon died, Terry married Hill, who was three decades younger, and pursued the case against Sharon’s estate.

Field, meanwhile, was now a justice of the U.S. Supreme Court. Under the statutes of the day, justices also sat as a federal circuit judges; Field returned to California each year, and Terry’s case came before him and two other federal judges. When, on September 3, 1888, Field read aloud the court’s judgment against Hill, she leapt to her feet in the courtroom and reviled the judges as corrupt. When a marshal took her in charge, Terry pulled out his Bowie knife to defend her. Marshals subdued both of them. Field, as presiding judge, clapped them into prison for contempt. Terry was finally released, six months later; he publicly vowed to horsewhip Field—or worse.

When Field returned to California for circuit duty in June 1889, Attorney General William Miller ordered the U.S. attorney in San Francisco to assign a special deputy marshal to protect Field. The bodyguard assigned was Charles Neagle, the former police chief of Tombstone, Arizona. For the next few weeks, wherever Field went, Neagle went as well.

Terry’s chance for vengeance came when he and Field both found themselves on the overnight Los Angeles-San Francisco train. At a railroad restaurant in Lathrop, California, Terry attacked the justice. Neagle leveled a pistol at Terry and said “Stop! Stop! I am an officer!” When Terry reached into his pocket, Neagle dropped him with two shots.

The local sheriff hustled Field and Neagle to jail on state charges of murder.  Field was immediately sprung on a federal writ of habeas corpus; but Neagle’s status was not so clear. Under the statutes of the time, federal habeas was only available if his imprisonment resulted from “an act done or omitted in pursuance of a law of the United States.”

Neagle’s application for habeas reached the Supreme Court in 1890. The majority conceded that “there exists no statute authorizing any such protection as that which Neagle was instructed to give Judge Field.” But, reasoned the Court, the attorney general had acted for the president, and the take-care clause gave the president power to protect federal judges. “We cannot doubt the power of the president to take measures for the protection of a judge of one of the courts of the United States who, while in the discharge of the duties of his office, is threatened with a personal attack which may probably result in his death.”

OK. I admit that Cunningham v. Neagle actually may not figure significantly in United States v. Texas. The case is mostly just fun; but it does obliquely raise an important question: Given the many duties of the president, the unclear text of the clause, and the tenuous (at best) standing of Texas to sue at all, is this a question the Court should be deciding? Of course, there are now ample statutes against attacking justices; nonetheless, the executive power may sometimes need a little play in the joints to deal with the unexpected.

Neagle was glad the Cunningham Court deferred to the President; instead of being hanged, he was freed from a California jail. Sarah Hill died in what was then called an insane asylum. As for Stephen Field, such was the esteem of his colleagues that Cunningham v. Neagle—holding that preventing his death was constitutional—was unanimous.

Well, not quite. Chief Justice Melville Fuller and Justice Lucius Quintus Cincinnatus Lamar dissented. “If the act of Terry had resulted in the death of Mr. Justice Field, would the murder of him have been a crime against the United States?” they wrote. “[N]o such statute has yet been pointed out.”