ER

The power accruing to the President from his function of law
interpretation preparatory to law enforcement is daily illustrated in
relation to such statutes as the Anti-Trust Acts, the Taft-Hartley Act,
the Internal Security Act, and many lesser statutes. Nor is this the
whole story. Not only do all Presidential regulations and orders based
on statutes which vest power in him or on his own constitutional powers
have the force of law, provided they do not transgress the Court's
reading of such statutes or of the Constitution,[395] but he sometimes
makes law in a more special sense. In the famous Neagle case[396] an
order of the Attorney General to a United States marshal to protect a
Justice of the Supreme Court whose life had been threatened by a suitor
was attributed to the President and held to be "a law of the United
States" in the sense of section 753 of the Revised Statutes, and as such
to afford basis for a writ of _habeas corpus_ transferring the said
marshal, who had "got his man," from State to national custody. Speaking
for the Court, Justice Miller inquired: "Is this duty [the duty of the
President to take care that the laws be faithfully executed] limited to
the enforcement of acts of Congress or of treaties of the United States
according to their _express terms_, or does it include the rights,
duties and obligations growing out of the Constitution itself, our
international relations, and all the protection implied by the nature of
the government under the Constitution?"[397] Obviously, an affirmative
answer is assumed to the second branch of this inquiry, an assumption
which is borne out by numerous precedents. And in United States _v._
Midwest Oil Company[398] it was ruled that the President had, by dint of
repeated assertion of it from an early date, acquired the right to
withdraw, via the Land Department, public lands, both mineral and
nonmineral, from private acquisition, Congress having never repudiated
the practice.

MILITARY POWER IN LAW ENFORCEMENT: THE POSSE COMITATUS

"Whenever, by reason of unlawful obstructions, combinations, or
assemblages of persons, or rebellion against the authority of the
Government of the United States, it shall become impracticable, in the
judgment of the President, to enforce, by the ordinary course of
judicial proceedings, the laws of the United States within any State or
Territory, it shall be lawful for the President to call forth the
militia of any or all th