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 Politics , Steven Levingston
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Seems another prerogative of President Potatoe Head is continueing to draw ACORN people into his inner circle.

Even as scandal piles on top of scandal, President Potatoe Head continues to embrace the organization. The latest is that the Senate just confirmed Patrick Corvington as chief executive of the Corporation for National and Community Service. Corvington and ACORN have quite the history.
Corvington was a senior official at the left-wing Annie E. Casey Foundation of Baltimore, Md., which granted funding to ACORN and other radical groups during his tenure. If Corvington didn’t share the views of the foundation, which promotes racial disharmony and opposes placing juveniles charged with crimes in pretrial detention, he almost certainly couldn’t have gotten a job there.
Since 2001 the Annie E. Casey Foundation has pumped at least $1,705,500 into the ACORN network, according to philanthropy databases.
Of the $1,705,500, at least $850,500 was earmarked for ACORN operations in Baltimore, Maryland, home of the ACORN branch office first shown in the undercover videos that debuted on Those videos show James O’Keefe and Hannah Giles pretending to be a pimp and a prostitute and receiving mountains of advice on evading laws pertaining to tax evasion and prostitution (among other things).

Posted by: nosuchluck | February 16, 2010 12:16 PM

What's your point, dude?

Posted by: JohnDinHouston | February 16, 2010 1:41 PM

Presidential prerogative is a perfectly acceptable use of power in times of unusual circumstance. However, most often the "prerogatives" used were overreaching. It is in our best interest to back off after crisis, and not accept these moves to be sustainable.

It doesn't leave a lot of room for the "I'm always right" crowd. In a perfect world we would all understand that in times of intense fear or crisis, we overact. Later backing off a policy is not an admission of defeat, but rather an admission that through experience we have found more level ground from which to make decisions.

If only.

Posted by: trident420 | February 16, 2010 2:24 PM

By the way ... Ezra Klein is full of crap .

Posted by: lagnafrah | February 16, 2010 2:47 PM

The Obama administration has strained the bounds of permissiveness more than any president in recent memory. Obama has acted and enacted laws and policies outside the U.S. Constitution not once but many times.

Now, his terrorist supporting White House lawyer, Rashad Hussain, is being touted by the Obama administration as a nominee as the Muslim Envoy! What the heck is going on here.

This man, Rashad Hussain, is a high level, closely associated with our president, terrorist supporter!!!!

This man, Rashad Hussain publicly supported convicted felon, Sami Al-Arian. Rashad Hussain's progressive, inflamatory remarks against Israel have been whitewashed from public record in order to protect this man and his erroneous position next to our president.

The people demand answers from one, Barack Hussain Obama.

Just who do we have in our White House making decisions about our national security, a terrorist supporter and sympathizer?

Posted by: prossers7 | February 16, 2010 3:03 PM

Obviously the full rules governing commentaries and discussions do not concern irrelevant and questionable remarks such as that displayed by nosuchluck, lagnafrah, and prossers7. Having written a paper on executive privilege for a university undergraduate historical research class, and therefore profoundly interested in the subject addressed by Professor Fatovic, it is disheartening to observe people abusing the right to commentary by addressing matters which have no bearing on the subject at hand and appear to lack even the slightest credibility.

Given Professor Fatovic's blog remarks, I find them to be completely in line with the small amount of research I myself conducted, and believe that Congress should balance out the exercise of presidential prerogative, once applied, through legislative means as constitutionally prescribed. As trident420 implies, however, practice does not always match theory.

Posted by: TheghostofLennyBruce | February 16, 2010 3:33 PM

Of course the president has prerogatives! It's in the Constitution and I will explain my reasoning in an upcoming blog.

Posted by: mtpackrat | February 16, 2010 4:26 PM

Dear Mr. Clement Fatovic & Mr. Steven E. Levingston:

With all due respect gentlemen, I suggest a career change: custom tailored garment design and confection. You both definitely are "blessed" by natural talent and the audacity to create upon demand!

Ingeniously manipulated "crossword culture" for the less educated, on cue!

Despicable brilliant job.

I reaffirm myself, nothing personal, just good old-fashioned pure dirty politics game strategy being executed, and you guys are the well-paid pawns.

Best wishes,

Carlos E. Fuentes-Pérez, B.S.

Posted by: FrontierExpositor | February 16, 2010 10:11 PM

Why are so many posts in this blog about politics, when it's supposed to be about books and the literary world?

Posted by: Heron | February 16, 2010 10:16 PM

"...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."

When is it determined that the worst of an emergency is over?

My great-grandfather joined a New York regiment of the Union Army when he was 13. His Anti-Slavery parents gave permission. He was a "drummer boy" initially. He fought in many famous battles. He mustered out at age 19 at the end of the War - 6 years later. Would that have signaled the "end of an emergency"?

Do you really think anyone was worried about "habeus corpus"? (Oh, by the way, George married Susan, had 11 children, one of whom, became a Judge.)

Can you re-imagine your life from 13 to 19 years like that? I can't.

But, in our time, more people - almost all civilians - died on 9/11 than in Pearl Harbor. Yet, we knew WWII required "extraordinary measures".

This current conflagration is not a WAR as the West, or even the East, has known. This is far beyond Mass Psychosis. There is no "blueprint" for this or any historical precedent to fall back on. How do you factor into your analyses the blowing up of mosques at Friday prayers?

This is not a religious "jihad" against the West or Modernism. How was "jihad" served by beheading Daniel Pearl with a penknife on video or arming a boy with dynamite on his private parts and the thousands of other atrocities?

There is ECSTACY in these Terrorists' SADISM.

This is unadulterated EVIL.

And, it could continue for 2 or more generations. Would I trust Congress or the Courts to referee this? NEVER. They are both decadent Mandarins or Medievals counting "devils" on the head of a pin.

I only trust the Free People of this Country to decide when or if "Prerogative" should be withdrawn. After all, it's not the blood of Congress or the Courts that's being sacrificed.

It's The People's blood. We decide.

Posted by: nanda1 | February 17, 2010 10:05 PM

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