October 2009 Vol. 108 No. 1 THE REVIEW

Examining Presidential Power Through the Rubric of Equity

Eric A. White

In this Note I propose a method to examine presidents’ actions taken outside the normal bounds of executive power by employing the general rubric of equity, in an attempt to find when the president acts with what I term “practical legitimacy.” This would be a new category for executive actions that, while perhaps arguably illegal, are so valuable that we want to treat them as legitimate exercises of executive power. To do so, I first examine the history of equity, noting the many relevant parallels to our modern conception of executive power. In light of these parallels, I argue that the resolution of the dispute over equity’s legitimacy warrants application in the executive-power context. I then focus on the rules and standards of one equitable remedy—the preliminary injunction—to fashion a framework by which to test executive action for practical legitimacy. Finally, in an effort to make clear how this novel test ought to be applied, I apply this framework to three historic exercises of questionable executive power: Jefferson’s purchase of the Louisiana Territory, Lincoln’s suspension of the writ of habeas corpus, and Truman’s seizure of the steel mills.

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