hrey _v._ United States.[322]

THE PRESIDENTIAL AEGIS

Presidents have more than once had occasion to stand in a protective
relation to their subordinates, assuming their defense in litigation
brought against them[323] or pressing litigation in their behalf,[324]
refusing a call for papers from one of the Houses of Congress which
might be used, in their absence from the seat of government, to their
disadvantage,[325] challenging the constitutional validity of
legislation which he deemed detrimental to their interests.[326] There
is one matter, moreover, as to which he is able to spread his own
official immunity to them. The courts may not require the divulging of
confidential communications from or to the President, that is,
communications which they choose to regard as confidential.[327] Whether
a Congressional Committee of inquiry would be similarly powerless is an
interesting question which has not been adjudicated.[328] Thus far such
issues between the two departments have been adjusted politically.

Section 3. He shall from time to time give to the Congress
Information of the State of the Union, and recommend to their
Consideration such Measures as he shall judge necessary and expedient;
he may, on extraordinary Occasions, convene both Houses, or either of
them, and in Case of Disagreement between them, with Respect to the Time
of Adjournment, he may adjourn them to such Time as he shall think
proper; he shall receive Ambassadors and other public Ministers; he
shall take Care that the Laws be faithfully executed, and * * *

Legislative Role of the President

The above clause, which imposes a duty rather than confers a power, is
the formal basis of the President's legislative leadership, which has
attained great proportions since 1900. This development, however,
represents the play of political and social forces rather than any
pronounced change in constitutional interpretation. Especially is it the
result of the rise of parties and the accompanying recognition of the
President as party leader, of the appearance of the National Nominating
Convention and the Party Platform, and of the introduction of the Spoils
System, an ever present help to Presidents in times of troubled
relations with Congress.[329] It is true that certain pre-Civil War
Presidents, mostly of Whig extraction, professed to entertain nice
scruples on the score of "usurping" legislative powers;[330] but still
earlier ones, Washington, Jeff