America's founders and presidential prerogative
George W. Bush certainly wasn't the first president to claim presidential prerogative during a national emergency. Several others, including Abraham Lincoln who suspended habeas corpus during the Civil War, have taken such action. In "Outside the Law: Emergency and Executive Power," published by Johns Hopkins University Press, Clement Fatovic traces the origins of presidential claims to powers not specifically endorsed in the Constitution or granted by Congress. Fatovic is an assistant professor of political theory at Florida International University.
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The claim that September 11 changed everything became the virtual mantra of the Bush administration. Not only were the terrorist attacks used to justify radical expansions of power under new laws such as the Patriot Act, they were also used to justify ostensible violations of existing laws and express constitutional prohibitions, including the Foreign Intelligence Surveillance Act, the Non-Detention Act, and the Fourth Amendment.
From the beginning, Bush administration officials steadfastly denied that they violated any laws by detaining enemy combatants indefinitely, deploying enhanced methods of interrogation, or conducting warrantless electronic surveillance. They have insisted that these and other counterterrorism policies are legitimate exercises of the president's inherent constitutional powers. John Yoo, an attorney who served in Bush's Office of Legal Counsel, has argued that the administration's expansive interpretation of presidential powers is consistent with the understanding of the American Founders.
Is Yoo right? Is it possible that the very same men who established a limited government under the rule of law would actually allow the president to wield such enormous discretionary power?
As it turns out, many of the Founders did acknowledge the need for extraordinary -- and even extra-legal --action by the president in times of emergency. At one time or another, Founders as different as Alexander Hamilton, Thomas Jefferson, and John Marshall approved the use of prerogative, which the English political philosopher John Locke defined as the "Power to act according to discretion, for the publick good, without the prescription of the Law, and sometimes even against it."
However, there's little support for more exorbitant claims that prerogative is an inherent right of the office or that it can be used on an ongoing basis after the worst of an emergency is over.
Although there were significant differences among many of the Founders (especially between Federalists, who championed the adoption of the Constitution, and Anti-Federalists, who opposed it), there was general agreement among those who favored a more energetic and centralized national government that it would sometimes be necessary for the president to act outside the law in extraordinary circumstances. Like Locke and other influential political writers, these Founders believed that established laws would not always be able to foresee and provide for every contingency. In fact, they acknowledged that there would be extraordinary occasions when strict adherence to existing law might do more harm than good.
But why would it ever be better to resort to extralegal discretionary action by the executive than to have Congress amend existing laws to deal with an unforeseen emergency?
Even though the Founders acknowledged the dangers of prerogative, proponents suggested that it would be safer to rely on this temporary expedient than to tamper with the legal or constitutional order in the midst of an emergency. For one thing, the legislature would likely be too slow to respond effectively to rapidly changing and unpredictable events. For another, the risk is too great that the legislature would create ill-advised laws once it finally acted -- a complaint that's frequently been voiced against the Patriot Act. The fear was that formal changes in the law would outlast the immediate emergency and permanently endanger liberty.
Despite its undeniable dangers, prerogative could actually help preserve freedom in the long run by avoiding the entrenchment of newly created powers that could be used in non-emergencies.
For the same reason that proponents of prerogative advised against making permanent changes in the law, they cautioned against making prerogative itself permanent. Prerogative was not a formal power that could be invoked at any time or extended indefinitely. Contrary to former Vice President Dick Cheney's assertion that 9/11 established a "new normalcy," prerogative was understood to be an extraordinary power that should be used only in extreme circumstances to restore the old normalcy as soon as possible.
Unfortunately, anyone looking for bright-line rules to distinguish legitimate from illegitimate exercises of prerogative won't get much help from the Founders. That's because it would have to be judged on a case-by-case basis, depending on a variety of factors, including the severity and duration of the emergency, the nature and proportionality of the means used, and the motives and character of the president. Whether its use in a particular case is justified is not necessarily a legal question to be answered by the courts, but a political question to be debated by the people and their representatives through the democratic process.
By Steven E. Levingston |
February 16, 2010; 5:30 AM ET
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