cretion of either Congress or the President, and has declined all effort to constrain these its coordinate departments to the performance of any, even the most constitutionally imperative act.[1] “When, indeed, the President exceeds his authority, or usurps that which belongs to one of the other departments, his orders, commands, or warrants protect no one, and his agents become personally responsible for their acts. The check of the courts, therefore, consists in their ability to keep the executive within the sphere of his authority by refusing to give the sanction of law to whatever he may do beyond it, and by holding the agents or instruments of his unlawful action to strict accountability.”[2] But such punishment, inflicted not directly upon the chief offender but vicariously upon his agents, can come only after all the harm has been done. The courts cannot forestall the President and prevent the doing of mischief. They have no power of initiative; they must wait until the law has been broken and voluntary litigants have made up their pleadings; must wait nowadays many months, often many years, until those pleadings are reached in the regular course of clearing a crowded docket.
Besides, in ordinary times it is not from the executive that the most dangerous encroachments
- ↑ Marbury v. Madison, 1 Cranch, 137.
- ↑ Cooley's Principles, p. 157.
