Does the President Possess the Prerogative? Part I: Characterizing the Power

I recently was at a Liberty Fund Conference where the issue of whether the President – in particular, Abraham Lincoln – enjoyed a prerogative. Some of the other participants argued that the President possessed a prerogative. My basic position is that the President does not have this power, but that he possesses a substitute which can serve the same function in a superior way.  I plan to address this question in three related posts.

In the Second Treatise, John Locke describes the prerogative as:

This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm, if they are executed with an inflexible rigour, on all occasions, and upon all persons that may come in their way; therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe.

One set of questions involving the prerogative is whether it is legal, illegal, or some how distinct from the question of law. That is, does the Constitution legally authorize the violation of other laws in special circumstances? Or does the Constitution require the President to follow such laws, in which case his prerogative actions are illegal. Or finally is the prerogative somehow distinct from the Constitution and laws in some unspecified way?

If the Constitution authorizes the prerogative, then clearly the prerogative would be legal. (One might argue that the power being authorized is not a prerogative, but simply a power of the President, but I believe that this mere semantics.) If the Constitution prohibits the prerogative, then it would be illegal. Finally, if one thought of the prerogative as a distinct power that was not contained in the Constitution, then the constitutional provisions would not reference it. But one would then have to ask what would happen if the President exercised the power and then the Congress chose to impeach him for it? If the Congress could do so, then the prerogative might appear to be illegal.

Next time, I will argue that the constitutional text prohibits the prerogative and therefore it is unconstitutional and illegal.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. Philip W says

    I look forward to your trying to think about this with some awareness that it is not, principally, a lawyerly issue.

    • gabe says

      Mike:

      Perhaps because, depending upon the analysis, some may see it as a means for once again slamming Abe Lincoln, (although I do not impute that to Phillip W) or other Presidents.
      For my part, I look forward to it – but I hope it is not accompanied by a 100 page essay at SSRN – as i have already added approx 500 pages to my reading list – just kidding!

      take care
      gabe

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