Executive Prerogative and the “Good Officer” in Thomas Jefferson's Letter to John B. Colvin†

There are several scholarly understandings regarding the Constitution and the prerogative power (Arnhart 1979; Scigliano 1989; Sorenson 1989; Thomas 2000). Each understanding agrees that laws are imperfect with regard to the future and must therefore be pushed aside if required to preserve the nation. Further, each concedes that the president, by virtue of his unity of office and duration, is the most convenient as well as the safest repository for emergency powers. The understandings differ on whether the Constitution acknowledges and grants these powers. One understanding argues that Article II's vesting clause, the commander-in-chief provision, and the oath of office provide the president with the constitutional, that is, the legal, foundation for using the prerogative (Corwin 1957 (1); Arnhart 1979; Sorenson 1989). According to this "constitutional" understanding, the Framers "constitutionalized" necessity by placing prerogative inside the Constitution (Mansfield 1987, 1993). Another understanding asserts that the Constitution is silent concerning the prerogative. Under this "extra-constitutional" understanding, the prerogative power is outside the Constitution, so its occasional exercise, although illegal, must be controlled by politics rather than by the Constitution (Wilmerding 1952; Schlesinger 1973; Robinson 1996; Fisher 1997). There is yet a third scholarly approach: rather than assessing prerogative purely in constitutional, or legal, terms, this understanding holds that prerogative is left to institutional conflict under constitutional design. Under this view, judging prerogative involves debate about premises--was there an emergency? Was there a grant of authority (or was such authority forbidden) by Congress? (Justice Robert Jackson, concurring opinion, Youngstown Sheet and Tube Co. et al. v. Sawyer, 1952). Do the "attitudes and opinions of the American community" support the action? (Roche 1952). Because presidential action becomes "prerogative" only when the other two branches say so (Thomas 2000), this understanding holds both a constitutional prerogative, in that the rival ambitions of officeholders in the three departments constrict prerogative (Thomas 2000), and an extra-constitutional prerogative, in that determining whether discretion is in the public good is a matter of politics simply (Roche 1952). The varying scholarly understandings of the constitutionality of prerogative illustrate how different findings can come from common evidence. Consider the Framers of the Constitution. According to Robert Scigliano (1989), the Framers used the word "prerogative" only when disapproving of it or when likening partisan opponents to Monarchists. When they did mention "discretion," they meant a "legal discretion.... to be exercised to aid the laws, not set them aside" (248). Other scholars, however, have argued that several essays of The Federalist, especially no. 23, assert a constitutional basis for prerogative (Arnhart 1979; Sorenson 1989). Similarly, even Scigliano found some justification among the Framers for "violating the laws": both Thomas Jefferson's 1810 letter to John B. Colvin and James Madison's argument in Federalist no. 40 justified departures from legality on principles found in the Declaration of Independence but not in the Constitution (1989, 251). If these scholars are correct, one might say that the Framers themselves were divided over the constitutionality of prerogative, a split that can be identified by a few essays in The Federalist and several arguments offered by Jefferson and Madison. Or, without settling the question about the Framers and the constitutionality of prerogative, one could end the matter with Justice Robert Jackson's observation about the Constitution and executive power generally: the arguments supplied by the Framers do little more than provide counterevidence for the two sides in an argument over 200 years old--the writings of Alexander Hamilton and Madison, Theodore Roosevelt and William Howard Taft, like the scholarly camps, "largely cancel each other" (concurring opinion, Youngstown Sheet and Tube Co. …