The contention that the American Presidency 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 plumbs the depths of Anglo-American legal history; 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. It has assumed a new urgency in the context of an ill-defined and indeterminate War on Terror, in which Presidents assert unilateral powers that are coterminous with the emergencies that they perceive.
Advocates of broad executive powers have sought rationales in assertions of national security, necessity and emergency. On various occasions, they 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 Professor Edward Corwin who, in his influential book, The President: Office and Powers (1940), drew a connection between Locke and the Framers. Let’s be clear on this purported connection. Corwin first quoted Locke’s famous statement, set forth in the chapter, “Of Prerogative,” in the Second Treatise of Government, published in 1690, that prerogative was the “Power to act according to discretion, for the publick good, without prescription of the Law and sometimes even against it.” Corwin proceeded to claim that “what the Framers had in mind” was “a broad range of autonomous executive power or ‘prerogative.’” 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.
The claim that the theory of 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. We may ask, does the Constitution confer upon the President authority to violate the law? If so, does it derive from the Vesting Clause or the Take Care Clause of Article II? Is there, indeed, room in the Constitution for the President to defy the instrument from which she derives her authority? Is it permissible for the 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 assertion of executive prerogative.
Proponents of an executive prerogative power have sought, primarily, to ground presidential prerogative in the Vesting Clause of Article II, which states that, “the executive power shall be vested in a President of the United States of America.” The question of whether this provision will bear the weight assigned it may be illuminated by what delegates to the Constitutional Convention actually said. It is instructive as well to recall the understanding of the term, “executive power” on the eve of the Convention. Julius Goebel, a renowned legal historian, observed in 1954, that the word, executive, as a “noun . . . was not then a word of art in English law—above all it was not so in reference to the crown. It had become a word of art in various state constitutions adopted from 1776 onward.” “It reflected,” he wrote, the revolutionary response to the situation precipitated by the repudiation of the royal prerogative.”
The use of the word, prerogative, was among the Founders, a term of derision, a political shaft intended to taint an opponent with the stench of monarchism. The consequent rejection of the use of the word, prerogative, in favor of the new and more republic-friendly noun, executive, necessitated discussion and explanation of its scope and content. In his 1783 work, “Draft of a Fundamental Constitution for Virginia,” Thomas Jefferson stated, “By executive powers, we mean no reference to those powers exercised under our former government by the Crown as of its prerogative.” Rather, “we give them these powers only, which are necessary to execute the laws (and administer the government).”
Jefferson’s understanding of executive power, and its implementation, were reflected in the Virginia Plan, which Governor Edmund Randolph introduced to the Constitutional Convention. The Virginia Plan provided for a national executive “with power to carry into execution the national laws,” and the power to “appoint to offices in cases not otherwise provided for.” James Wilson, second in importance only to James Madison, as an architect of the Constitution, echoed that understanding, which prevailed throughout the Philadelphia Convention. He declared that executive power was limited to “executing the laws and appointing officers.” Madison agreed and then contributed a principle that proved vital to the construction of presidential power. He thought it necessary “to fix the extent of executive authority,” since “certain powers were in their nature Executive, and must be given to that department.” He added that “a definition of their extent would assist the judgment in determining how far they might be entrusted to a single officer.” The definition of the President’s authority should be precise, thought Madison; the executive powers “should be confined and defined.”
To the extent that there was a debate on executive power, it centered almost entirely on the question of whether there should be a single or a plural presidency. There was no challenge to the definition of executive power held by Randolph, Wilson and Madison. Indeed, no alternative understanding of executive power was advanced during the Convention, a key point which, by itself, delivers a clear rebuke to the assertion of a presidential prerogative power somehow embedded in the Vesting Clause of the Constitution. Moreover, there was no argument about the scope of executive power. Indeed, any latent fears were quickly allayed by Wilson, who assured his colleagues that “the Prerogatives” of the Crown were not “a proper guide in defining the Executive powers.” The importance of Wilson’s assurance is critical to understanding why Corwin’s assertion of the connection between the Lockean Preogative and the Framers’ conception of executive power is untenable. Professor Corwin observed that Wilson was the leader of the “strong executive” wing of the Convention. Assuming, for the sake of argument, that he was correct, it is thus important to recall Wilson’s definition of executive power. Wilson defined that authority as extending to the enforcement of laws and making appointments to office. As it happened, no delegate in Philadelphia promoted a conception of executive power that exceeded Wilson’s stated parameters. Wilson’s conception, which echoed Jefferson’s and Madison’s, and was shared by delegates in the various state ratifying conventions, provides the historical context within which to view the Founders’ conception of executive power. It was in this context, then, that the Constitutional Convention designed the Office of the Presidency. Far from establishing an executive resembling a monarch, the Framers, in fact, severed all roots to the royal prerogative. As James Wilson noted, the prerogatives of the Crown were ill-suited to the republican enterprise on which the Framers had embarked. Benjamin Franklin, as familiar with the prerogatives of the Crown as anyone, observed on more than one occasion Americans’ denunciation of governmental arrangements and institutions that smacked of “too much Prerogative.” The Framers’ rejection of the English model, grounded in their fear of executive power and reflected in their derision of monarchical claims and prerogatives, was repeatedly stressed by defenders of the Constitution. Alexander Hamilton, who was at the center of Federalist writings, attempted to allay concerns about the creation of an embryonic monarch. In Federalist No. 69, it will be recalled, he conducted a detailed analysis of the enumerated power granted to the President as Commander in Chief and provided a narrative that trumpeted the Framers’ refusal to vest in the President unilateral authority over matters of war and peace, a decision that represented a radical departure from the high Prerogative wielded by the King of England.
Hamilton’s Federalist essays fairly reflect the constitutional “sketch” that he laid before the Constitutional Convention. His ruminations in Philadelphia, aired in a lengthy speech on June 18,1787, have inspired in the scholarly realm some misconceptions that require attention at this juncture. On the floor of the Convention, Hamilton noted his admiration for the British system. He admitted that in his “private opinion he had no scruple in declaring” that the British government “was the best in the world.” He thought that the “hereditary interest of the King was so interwoven with that of the Nation,” that he was beyond “the danger of being corrupted from abroad.” Accordingly, as it has often been observed, he preferred an “executive for life.” But it is often overlooked that he also preferred that “one branch of the Legislature hold their places for life or at least during good behavior.”
After giving flight to his personal preferences, entirely hypothetical given the context of his speech, Hamilton acknowledged that they had no application to America and the creation of a republic, the enterprise in which he and his fellow delegates were engaged.
Given the interest in, and controversies surrounding Hamilton’s views on executive power, let us take another moment to consider the design for the Presidency that he presented in Philadelphia. In his own “plan” for a Constitution, which amounted to ideas that he would contribute to Edmund Randolph’s proposals, which were submitted as the Virginia Plan, Hamilton embraced an executive that reflected Wilson’s views. The executive, he stated, would have responsibility for “the execution of all laws passed.” The President, moreover, would be required to obtain the Senate’s approval for making treaties and appointing ambassadors. Hamilton preferred a presidential pardon power weaker than the design that ultimately prevailed, for he would prohibit the President issuing pardons in cases of treason without the approbation of the Senate. In another rebuke to the monarchical model, Hamilton would vest in the Senate “the sole power of declaring war.” In the end, Hamilton’s conception of executive power mirrored the views of presidential power advanced by such heavyweights as James Madison and James Wilson.
The confined nature of the Presidency, a conception rooted, for example, in Wilson’s observation that the President is expected to execute the laws and make appointments to office, or in Roger Sherman’s remarks that “he considered the Executive magistracy as nothing more than an institution for carrying the will of the Legislature into effect,” represented a characterization that was never challenged throughout the Constitutional Convention. No delegate to the Convention, it is to be emphasized, advanced a theory of presidential prerogative. James Madison justly remarked: “The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts, therefore, properly executive, must presuppose the existence of the laws to be executed.”
There remains the need to address the claim that the Framers had in the back of their minds the availability of the Lockean Prerogative as a presidential power to meet emergencies. There is no evidence to suggest that the Framers intended to incorporate the Lockean Prerogative in the Constitution. And lacking a textual statement or grant of power to that effect, such an intent is indispensable to the claim of constitutional power. In fact, as we have seen, the evidence runs in the other direction. Fears of executive power led the Framers to enumerate the President’s power; they undertook to “define and confine” the scope of his authority. Clearly, an undefined reservoir of discretionary power in the form of Locke’s prerogative would have unraveled the carefully crafted design of Article II and repudiated the Framers’ stated aim of corralling executive power. More importantly, the absence of such authority means that by definition any presidential assertion of a prerogative power to violate the law is an extra-constitutional claim; an action based on such an assertion is, by definition, unconstitutional.