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. The failure to draw appropriate distinctions clouds academic discussion and frustrates efforts to analyze and critique presidential claims of power. Let us consider some fundamental distinctions. The claim of inherent executive power, however specious it may be, represents an effort to locate within the executive constitutional authority that exceeds the textual grant of enumerated powers, as well as implied authority that flows from that grant, but that, nonetheless, is derived from article II of the Constitution (Adler 2002, 155-213; Fisher 2007a, 1-22; Youngstown Sheet & Tube Co. v. Sawyer 1952). The assertion of extra-constitutional power, which is equally specious in a constitutional system in which government derives its authority from the Constitution, rests on the bizarre argument that executive power is drawn from sources beyond the Constitution (Adler 1988, 32-34; Fisher 2007b, 139-152; United States v. Curtiss-Wright Export Corp. 1936). The vague concept of a presidential emergency power, moreover, may be viewed as either inherent or extra-constitutional, such is the ambiguity of the claim, but what is clear is that Congress may, by statute, vest emergency powers in the president. That sort of legislative enactment, constitutionally permissible from a procedural standpoint, would create yet another category--a fourth kind--of presidential power, which further blurs analysis of the source and scope of authority wielded by the president unless, of course, commentators exercise care in explaining the difference between statutorily conferred emergency authority and the claim of a constitutionally based, executive emergency power. The great need for clarification of terms in the discussion of executive power recalls the wisdom of Voltaire's admonition: Define your terms. For the sake of academic discussion, I submit, scholars should reserve use of the term, presidential prerogative, as a claim of authority to act in the absence or violation of law to meet an emergency. Its use as a synonym for executive power muddies the waters and deprives the scholarly fraternity of the assurance that it is engaged in the same discussion when referring to claims executive power.
The Lockean Prerogative, it is familiar, is merely a literary theory, not a juridical concept. As we shall see, there is nothing in the text of the Constitution, the debates or train of discussion in either the Constitutional Convention or the state ratifying conventions, or in contemporaneous writings for that matter, to support the claim that the president possesses a prerogative power to violate the laws of the nation. The Supreme Court, it bears reminder, has never employed such logic. Indeed, assertions of an executive authority to trample constitutional restraints invites Chief Justice John Marshall's rejoinder in Marbury v. Madison: "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained" (1803, 176). From the beginning, it was recognized that the platform of American Constitutionalism, as Justice Hugo Black observed in Reid v. Covert (1957, 5-6), stands for the proposition that "The United States is entirely a creature of the Constitution. Its powers and authority have no other source. It can act only in accordance with all the limitations imposed by the Constitution." Manifestly, that platform would be reduced to rubble if the president enjoyed power to rampage across the metes and bounds of American law. The passage of time has dimmed neither the force nor the vitality of that principle. If it were otherwise, it would be necessary to acknowledge that we have abandoned governance based on preestablished rules and embraced governance predicated on the whims of those who wield power, including executive fiat. "That might result in a benevolent despotism," Justice Benjamin Cardozo rightly observed, "if the judges," or presidents for that matter, "were benevolent men." In any case, he added, it "would put an end to the reign of law" (Cardozo 1921, 136).
The assertion of presidential prerogative to violate the laws represents, in its raw form, a claim of power, triggered by the claim of necessity, to act illegally or unconstitutionally. The theory of prerogative conflicts with every tenet of American constitutionalism. If, in fact, necessity is the measure of power, why should any consideration be given to legal restraints or constitutional limitations? And, we are entitled to ask, by what measuring stick may the legality of an extra-constitutional act be evaluated? Since the theory of prerogative is nowhere enshrined in the Constitution, its assertion represents what the language philosophers call an "illicit presupposition" (Austin 1962). Neither the desire for power nor the assertion of an ipse dixit can create constitutional authority. There is no doubt that in a constitutional system, in which governmental officials derive their authority from the Constitution, that the executive, like the Court, bears an obligation to ground its acts in constitutional norms (Ely 1973, 949).
Manifestly, the Constitution does not confer upon the president authority to flaunt the laws. Indeed, no governmental actor--president, judge, or legislator has been granted an exemption or dispensation from adherence to the Constitution, to which he has sworn an oath to defend. The omission in the Constitution of an articulated or implied grant of authority to the president to violate laws in the face of an emergency reflected the framers' most-deeply felt fears about executive power. In his celebrated concurring opinion in the Steel Seizure Case (1952), Justice Robert H. Jackson rightly observed that the framers did not vest emergency powers in the president. The framers recognized, Jackson explained, "that emergency powers would tend to kindle emergencies" (650). Yet...