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Home > Journals > Michigan Law Review > MLR > Volume 23 > Issue 6 (1925)

 

Abstract

The relation of the judiciary to the executive branch of the Government is a perplexing one. According to the Constitution, the government of the United States is threefold in character, legislative, executive and judicial. Each of these is supposed to be independent of the others. One cannot usurp the function of any one of the others. At the same time, this is a "Government of laws and not of men." It is equally true that this is a government of laws and not of political subdivisions or of the subdivisions of governmental mechanisms. Legislators, executives and judiciary must abide by the laws as they exist. The judicial branch of the government interprets and applies the law. It, therefore, has the power to review all matters of law which concern the executive and the legislative branches of the government and even their own functionings. It has never been doubted that within certain undefined limits the judiciary does have the power to review the acts of the executives and legislators of the government. The difficulty has been, and still is, in finding and demarking the limits within which the courts may legally review the acts of the legislators or the executives. The problem is a threefold one. It concerns the exercise of discretion by the executive officers, the determination of policies to be pursued by the executive or the legislative bodies, the extent to which executives and legislators are amenable to the civil or criminal law when they step outside the bounds within which they may legally function. It is the purpose of this discussion to confine itself simply to the relation existing between judicial power of review over the activities of executive officers of the government and the criminal liability of executive officers for their activities when such activities are legally outside of the scope of their authority.

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