Executive Prerogative

• Author: Phillip R. Trimble
• Pages: 949-952

Page 949

Executive prerogative refers to the President's constitutionally based authority to declare policy, take action, and make law without congressional support or in the face of inconsistent congressional LEGISLATION. This authority may be seen as a corollary of the SEPARATION OF POWERS under which the President has exclusive EXECUTIVE POWER

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that Congress may not invade because Congress's authority is limited to LEGISLATIVE POWERS. Executive prerogative may also refer to certain EMERGENCY POWERS under which the President may act contrary to the Constitution, such as spending funds without an appropriation or contrary to an act of Congress that would properly be classified as a legislative act. In the view of some eighteenth-century political theorists, the President could act extraconstitutionally or illegally if circumstances required, but he would have to seek subsequent ratification of the act. More recently, the President has justified such action on the basis of an inherent or implied authority conferred by the Constitution.

Executive prerogative mostly relates to FOREIGN AFFAIRS but may also include domestic acts, such as actions during war or national emergency, dismissal of CABINET officers appointed with Senate participation, and assertion of EXECUTIVE PRIVILEGE to protect communications of executive branch officials from congressional or judicial inquiry.

The Constitution does not expressly delegate a "foreign affairs" power to the President or to any single branch of the government. Indeed, the Constitution delegates most specific foreign relations powers to the Congress. These powers include the powers to declare war, to regulate FOREIGN COMMERCE, and to define and punish offenses against the law of nations, piracy, and FELONIES committed on the high seas, as well as the powers to authorize an army, navy, and MILITIA and to make rules for the regulation of land and naval forces. Congress therefore has concurrent authority and substantial practical influence over all aspects of foreign affairs. Notwithstanding this authority, the President dominates foreign affairs. Yet the Constitution delegates relatively few foreign relations powers to the President, and several of these powers are shared with the Senate or Congress. The President has the power to make treaties and appoint ambassadors, but only with the participation of the Senate. His power as COMMANDER-IN-CHIEF is subject to limitation by the congressional war, legislative, and appropriations powers. The President has the power to receive ambassadors, the duty (and implicitly the power) to take care that laws (including treaties and customary international law) be faithfully executed, and a general executive power. But executive prerogative rests more on historical practice and functional necessity than on constitutional text.

Much of the President's dominance of foreign affairs is based on extralegal factors, such as access to the media and political party status. Most presidential foreign affairs authority derives from congressional support. For example, Congress has delegated to the President plenary authority over foreign commerce. It has also authorized and funded a standing armed force, a vast intelligence bureaucracy, and dozens of agencies with thousands of officials participating in all facets of international organization and activities. Having created the bureaucracies, Congress has generally been content to let the executive run them. Executive prerogative has historically sanctioned the President's right to recognize foreign states and governments, establish diplomatic relations, initiate negotiations, determine the content of communications with foreign governments, conduct intelligence operations, conclude presidential EXECUTIVE AGREEMENTS, and initiate military action.

Executive prerogative has been controversial since the first administration of GEORGE WASHINGTON. After Washington declared...