The Law: The Framers and Executive Prerogative: A Constitutional and Historical Rebuke

Abstract

Continued assertions of a presidential prerogative power, broad enough, in the literary tradition of the Lockean Prerogative to permit the president in an emergency to act in the absence or violation of law, raises anew the question of the existence, source, and scope of such extraordinary authority. This article explains that the framers of the Constitution delivered a constitutional and historical rebuke to the concept of executive prerogative. As Justice Jackson observed in the Steel Seizure Case, the framers recognized that the possession of an emergency power would "tend to kindle emergencies." Presidential violation of the Constitution is illegal, and can be made legal only through congressional passage of retroactive ratification.Continued assertions within scholarly precincts and the corridors of power of the need to concentrate in the executive authority to meet foreign affairs and national security challenges, particularly in the decade since the 9/11 outrage, have renewed debate on the issue of whether the Constitution vests in the American presidency what has been characterized as a prerogative power to meet emergencies. The contention that the executive possesses the authority to act in the absence of law or even in violation of it-exalted in the literary tradition of the Lockean Prerogative-is an issue of great moment for a nation committed to constitutional government and the rule of law. The concept of executive prerogative is hardly a new issue; indeed, it plumbs the depths of Anglo-American legal history, and it has absorbed the energy and wits of scholars and

Constitutionalized Prerogative and the Pardon Power

“…To this point, there is scholarly debate as to whether Lockean prerogative “derives from the constitution itself” (Feldman ), or whether it is entirely outside of Lockean constitutionalism (e.g., Adler ). Neither camp seems to dispute the need for prerogative, or prerogative‐type power, but they differ on the source of authority for prerogative.…”

“…Neither camp seems to dispute the need for prerogative, or prerogative‐type power, but they differ on the source of authority for prerogative. While the constitutionalists generally argue that “any constitution that fails to provide for such prerogative is a constitution that has abdicated its responsibility to provide the powers needed by a government prepared to meet the crises that can rationally be expected” (Pangle ), the extraconstitutionalists argue that no constitution can properly outline the necessary boundaries of prerogative power without either granting the executive an illimitable degree of discretionary authority; curtailing the executive's ability to respond to unforeseen exigent circumstances; or, perhaps more likely, both (Adler ; Langston and Lind ). If “the purpose of a constitution is to specify and confine governmental powers,” then that “objective is undermined by claims of ‘inherent’ powers” that seem to stem from the constitutionalist arguments (Fisher , 2).…”

The Law: A Constitutionalist's Defense of Prerogative: Taft's Our Chief Magistrate and His Powers

“…Arthur Schlesinger's Imperial Presidency argues “we need a strong Presidency—but a strong Presidency within the Constitution ,” then quickly concedes that “the Lockean doctrine of emergency prerogative … expressed a real, if rare, necessity in a free state” (Schlesinger , x, 114). In order to counter the dangers confronting the nation, the Jeffersonians are willing to permit the president to tap into an indefinite reserve of powers, but they also demand that he explain “why his action was necessary and reasonable,” submitting his deeds to Congress which may make “the illegal act legal, after the fact” (Adler , 379). Essentially, the Jeffersonians assume that the Constitution grants the government insufficient powers to respond to emergencies.…”

“…Essentially, the Jeffersonians assume that the Constitution grants the government insufficient powers to respond to emergencies. As a result, they would permit the president to violate the law in order to save the nation but also force him to recognize that he is a servant and that the sovereign legislature will judge the rightness of his actions (Adler ; Adler ; Bailey ; Schlesinger ; Wilmerding ; Rockman and Waltenburg ; Rudalevige ; see also Kleinerman ; Kleinerman )…”

The Contemporary Presidency: How Presidents Utilize Their Emergency Powers

“…Somewhat lost in the strong, mostly partisan public discourse, however, is a recognition of the broad discretion that presidents have in relation to emergency powers. Though some reject the idea of presidential prerogative-broadly defined as the executive's broad discretionary powers that extend beyond those explicitly noted in the Constitution-U.S. presidents have relied on the office's prerogative power, especially in foreign policy (see, e.g., Adler 2012;Corwin 1984;Fisher 2014). In addition, presidents have also relied on legislative authorities to act during national emergencies.…”