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

Abstract

Traditional discussions of presidential prerogative power have grouped scholars into “Jeffersonian” and “Hamiltonian” camps, both of which seek to justify the broad‐ranging use of executive power in an emergency while also admitting that the prerogative power is technically illegal or extralegal. This article explores William Howard Taft's Our Chief Magistrate and His Powers, which lays out a theory of Article II that permits the president to employ expansive executive means to attain limited constitutional ends. By both legalizing and limiting the president's use of prerogative, Taft's understanding of the Constitution and prerogative may contribute to the scholarly debate on executive power.

Constitutionalized Prerogative and the Pardon Power

“…Recent scholarship on President William Howard Taft (Burns ) has highlighted the arguments made by some constitutionalists that the Constitution and laws provide both “broad emergency powers” and a means of limiting presidential actions. Burns's account of Taft's theory also claims that “the president bears primary responsibility for determining what actions are ‘proper and necessary’ as a means for carrying out his duties” and that the courts have limited authority to review such presidential determinations “unless executive action directly infringes upon individual rights” (341).…”

George Mason and the Ambiguity of Executive Power

“…The Jeffersonian understanding holds that prerogative is “extralegal and extraconstitutional, but also necessary in emergencies” (Burns , 338). Jefferson articulated this idea in an 1810 letter to John B. Colvin, arguing that written law should lose when set against “the laws of necessity, of self‐preservation, of saving our country when in danger” as “[t]o lose our country by a scrupulous adherence to written law, would be to lose the law itself,” making it necessary for “officers in high trust, to assume authorities beyond the law” (Jefferson , 556).…”

“…For a sampling of the expansive literature on prerogative, see Wilmerding (), Kallenbach (), Arnhart (), Sorenson (), Scigliano (), Langston and Lind (), Storing (), Thomas (), Bailey (), Fatovic (; ), Schlesinger (), Mattie (), Kleinerman (), Rossiter (), and Burns ().…”

“…Burns argued that students of Herbert Storing, who Burns classified as a subset of the Hamiltonians on this question, see prerogative as both legal and constitutional (Burns ). For examples of this subset in the literature, see Storing (), Nichols (), and Bessette and Tulis ().…”