This chapter addresses the Supreme Court’s recent, partly paradoxical lines of cases involving issues of presidential power, prerogative, and immunity. On the one hand, the Court has held that Article II and the Constitution’s overall structure endow the president with sweeping authorities and prerogatives. These include powers to control a “unitary” executive branch by removing officials who refuse to do the president’s bidding and, separately, a prerogative-like “immunity” from prosecution for many unlawful official acts, including ones that would constitute serious crimes if committed by anyone else. On the other hand, the Court has sought to limit the powers of agencies within the executive branch, which the president heads, on the theory that post–New Deal agency officials were allowed to assume functions that the Constitution reserves either to Congress or to the courts. Nowhere, this chapter explains, has the Court’s conservative supermajority pursued, or does it seem more likely to continue to pursue, a doctrinally revisionist agenda with more sweeping practical consequences.

New Dealers in the administration and on the Court were committed to the Progressive view of the relation between administrative agencies and the political branches-- as were, to a surprising degree, the Court’s more conservative members. Crowell v. Benson, which ardent New Dealers like Felix Frankfurter, lamented, actually went quite far in validating the Progressive theory of administrative agencies, though not as far as the most visionary proponents of the administrative state wanted.

The chapter describes the drafting of New Deal statutes and the Roosevelt administration’s legal strategies to defend them against conservative attacks. The “Black Monday” decisions of 1936 showed that the Court’s earlier decisions had not in fact shown that the Court’s majority was ready to acquiesce in everything done in the name of economic recovery. The Schechter decision was not in itself a serious blow to the New Deal, involving as it did a program that had lost political support within the administration, but it was rightly seen as resting upon premises that did threaten New Deal programs.