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

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 statesmen across the decades, from the American Revolution and the Constitutional Convention to the Civil War and the Cold War (Adler 1988; Corwin 1984; Fatovic 2004; Judson 1949; Langston and Lind 1991; Mansfield 1989; Robinson 1995; Rossiter 1948; Scigliano 1989; Wormuth 1939). Yet, it has assumed a new urgency in the context of an ill-defined and indeterminate War on Terror, in which presidents assert expansive, unilateral powers that are coterminous with the emergencies that they perceive (Adler 2010; Fisher 2007b; Healy 2008; Pfiffner 2008; Pious 2007, 2011; Rakove 2007; Schwarz and Huq 2007). Advocates of sweeping executive powers have sought rationales in assertions of national security, necessity, and emergency. On various occasions, defenders have invoked the framers of the Constitution whom, they maintain, clothed the president with a Lockean Prerogative to meet national security crises. That premise, destined to become a staple of teaching and writing on the American presidency, was first asserted by Edward Corwin who, in his influential The President: Office and Powers (1940), drew a connection between Locke and the framers of the Constitution (Corwin 1984; Scigliano 1989, 236). Corwin first quoted Locke's famous statement, set forth in the chapter, "Of Prerogative," in The Second Treatise of Government, that prerogative was the "Power to act according to discretion, for the publick good, without the prescription of the Law and sometimes even against it" (Corwin 1984, 8; quoting Locke 1986, 92). He proceeded to claim that "what the Framers had in mind" was "a broad range of autonomous executive power or 'prerogative'" (Corwin 1984, 14). Corwin's contention that the framers had embraced the literary concept of the Lockean Prerogative, which included the authority to set aside laws, assumed the status of convention among political scientists, historians and lawyers. (Fatovic 2004, 430; Mansfield 1989, 247-78). The Lockean Prerogative, somehow embedded in the Constitution, was drawn straight from the pages of the Stuart Kings' doctrine of High Prerogative. Did the framers embrace the Stuart Kingship? The assertion that the framers of the Constitution endowed the president with the Lockean Prerogative, requires reexamination of their conception of executive power. Does the Constitution confer upon the president authority to violate the law? If so, is it derived from the Vesting Clause or the Take Care Clause? Is there, indeed, room in the Constitution for the president to defy the instrument from which he derives his authority? Is it permissible for a president to swear an oath to uphold the Constitution and at the same time to ignore its provisions? That, precisely, is the threshold question raised by the claim of executive prerogative. Clarifying the Theory of Prerogative For the sake of analytical clarity, it should be recalled that the concept of executive prerogative is not synonymous with such notions as inherent presidential power, extra-constitutional presidential power, and presidential emergency power. While writers sometimes treat these claims as synonyms, there are, I believe, substantial differences. …