A constitution-shaping part of the President is paradoxical since Americans take pleasure in the fact that America is a government of laws and no one in its constitutional system, not even the President, is above the law. The fact that the President is at the same time dependent on constitutional law and is a creator of the constitutional law, of course, creates unease and problems.
Government lawyers, and principally the Solicitor General of the USA, are unavoidably caught up in the conflicts produced by the President’s tentative association with the Supreme Court. However, scholars have suggested three normative theories how government lawyers, especially the Solicitor General, should determine the Presidents and the Courts sharply contrasting constitutional outlooks. Of course, some claim that government lawyers ought to take their lead from the President (See McGinnis, 1992)1, others believe they must take their lead from the Court (See Caplan, 1987)2, and still others, such as former Solicitor General Charles Fried, that they should act as partly independent Burkean representatives elected by the President to represent him before the Court (See Fried, 1991)3.
The thorny relationship between the President and the Supreme Court concerning the development of constitutional law has different consequences for different individuals who happen to be government lawyers at any given point in time.
A major principle of the US constitutional system is that the President and his colleagues are conditional on the same laws that bind typical private citizens. The Constitution itself assumes as much since it requires the President to preserve, protect and defend the Constitution (U.S. Const. art. II, 1, cl. 7)4 and to take [c]are that the [l]aws be faithfully executed (U.S. Const. art. II, 3)5. In addition, the Constitution authorizes the trial of all executive branch officials, except possibly for the President, and even he can be impeached after leaving the office.nbsp.In the Steel Seizure Case (Youngstown Sheet amp. Tube Co. v. Sawyer, 1952), Justice Jackson underlined that ours is a government of laws, not of men and . . . we submit ourselves to rulers only if under rules (Id. at 646)nbsp.