Unconstitutional presidential acts can escape judicial review when Congress later ratifies them

Evidence

What a President may do as a matter of expediency or extremity may never reach a definitive constitutional decision. For example, President Lincoln suspended the writ of habeas corpus, olaiming the constitutional right to do so. See Ex rte Merryma, 17 Fed. Cas. No. 9,487. Congress ratified his action by the Act of March 3, 1863. 12 Stat. 755. — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 2839

Categorization

• XREF: The ex post facto/ratification pattern echoes Chapter 16’s treatment of retroactive liability and later validation of initially unlawful acts. — connects to: Congress can withhold executive power through legislative history as decisively as through enacted words — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 2813; Reading a statute’s specific procedure as exclusive prohibition is a contested interpretive choice — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 2957; Amendment-by-implication doctrine can ratify an agency’s contested interpretation when Congress touches a statute — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 509
• QUESTION: If a president exceeds power but Congress ratifies, has law truly been broken, and when would courts step in?