Pursuant to the doctrine of prerogative power, the President as chief executive has ostensible authority to act with discretion—sometimes without or against legislative direction or consent—for the public good, particularly during emergencies, insurrections, or war.
The Constitutional basis for prerogative power is two-fold: First, in the view of the Founders, the Declaration of Independence and the Constitution are principally based on Lockean principles among others. As the Declaration states, the “Laws of Nature and Nature’s God” (or natural rights, inherent in all men as “endowed by their Creator” ). According to Locke, as embraced by the Founders, individuals in the state of nature possess a natural “executive power” to judge and punish violators of natural law to defend their life, liberty, and property. Upon forming a civil society, this right is delegated to the government (but retained in measure by each individual for purposes of self-defense). This natural “executive” power as invested at the government level, then extends to the defense and protection of the people and society itself. Secondly, Article II of the Constitution grants the President all “executive power” with broad authority to act in foreign affairs, national security, and emergency situations, and with implied authority to act beyond specifically enumerated powers. While often contested, prerogative power has been exercised by U.S. Presidents from George Washington to today. Again, the primary test is that this discretionary power is to be exercised for purposes of the public good and national security.
In President Thomas Jefferson’s letter to John B. Colvin, September 20, 1810, Jefferson states that the highest obligation of a nation’s leader is not just to observe the law, but to preserve and to save the country when in danger:
The question you propose, whether circumstances do not sometimes occur which make it a duty in officers of high trust to assume authorities beyond the law, is easy of solution in principle, but sometimes embarrassing in practice. A strict observance of the written laws is doubtless one of the high duties of a good citizen: but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.
Jefferson continues his letter by citing several examples, including saving a ship at sea lacking provisions by force against another refusing supply, the hypothetical purchase of Florida for a reasonable sum when Congress is not in session for three weeks when the sale could be lost within days, and lastly the Aaron Burr – General Wilkinson situation in New Orleans. He concludes that: …[there is] a law of necessity and self-preservation, and rendered the salus populi supreme over the written law…. In these the example of overleaping the law is of greater evil than a strict adherence to its imperfect provisions. It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake….
Thus, Jefferson’s constitutional justification for executive prerogative is that salus populi is supreme over the written law – that being “the safety or welfare of the people,” or when “some of its very high interests are at stake.” President Jefferson’s arguments for the exercise of prerogative power echo his own actions from a few years earlier in 1803 when he purchased the 828,000 square-mile Louisiana Territory on behalf of the United States from France for $15 million without Congressional approval (although later ratified). Despite believing it was unconstitutional because the Constitution didn't explicitly authorize acquiring new territory, Jefferson gave precedence to national security and economic advantages, such as controlling the Mississippi River and effectively blocking France and Spain from further colonization of North America. Initially, Jefferson had considered seeking a constitutional amendment as the only legitimate way to proceed, but he was advised that Napoleon Bonaparte might withdraw the offer if delayed (similar to the Florida example in his Colvin letter). As an interesting note, Alexander Hamilton supported the purchase without such an amendment.
Jefferson had also previously exercised executive prerogative by authorizing the U.S. Navy to proceed against the Barbary pirates (1801–1805) seeking to defend U.S. shipping and Atlantic commerce from piracy and extortion without a formal congressional declaration of war. While initially ordering only defensive actions, he argued that Tripoli's attack on the American flag justified allowing U.S. ships to “chastise their insolence—by sinking, burning or destroying their ships.”
Abraham Lincoln’s constitutional justification for his Presidential use of prerogative power was centered on his oath of office, which is set forth in the Constitution: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” In his letter to Albert Hodges, April 4, 1864 (just 10 days before his assassination), Lincoln wrote concerning his interpretation of the oath’s meaning and application to preserve the Union and the Constitution during the Civil War, while he resisted the temptation to “act in mere deference” to his personal feelings on slavery:
It was in the oath I took that I would, to the best of my ability, preserve, protect, and defend the Constitution of the United States. I could not take the office without taking the oath. Nor was it my view that I might take an oath to get power, and break the oath in using the power… I did understand however, that my oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government---that nation---of which that constitution was the organic law. Was it possible to lose the nation, and yet preserve the constitution? By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it.
The ultimate example of Lincoln’s use of prerogative power may be seen in his issuance of the Emancipation Proclamation on January 1, 1863. After much deliberation, using his authority as Commander-in-Chief during wartime to seize “enemy property”—enslaved people—which he justified as a necessary military measure to preserve the Union. The proclamation, a wartime executive order, declared “that all persons held as slaves” within the rebellious states of the Confederacy “are, and henceforward shall be free.” When he issued the Proclamation, he was very concerned that he had to articulate a constitutional basis for emancipation; so, he did not free all the slaves in the United States or even in all the slave states. As commander in chief, the Proclamation freed slaves only in states where the people were “in rebellion against the United States,” and then only on the ground that it was “a fit and necessary war measure for suppressing said rebellion.”
The inherent dangers to the exercise of executive prerogative power lie in the discretion, moral character, and wisdom of the President himself. A narrow or corrupt view of the public good may clearly lead to abuses of this power. Additionally, executive prerogative is often exercised broadly and quickly in “heated” and inherently dangerous situations, creating the opportunity for arbitrary, partisan, short-sighted, or self-interested decision-making. Greater risks may also exist in its application in foreign affairs with the threat of expanding conflicts. Challenging expected norms of transparency and democratic deliberation, reliance on executive discretion can directly contribute to weakening the checks and balances among and between the branches of government. Finally, a president’s use of prerogative powers are often viewed and ultimately judged only in hindsight –by elected representatives and the people themselves. As Jefferson reflected, “It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake…”
By: J. David Gowdy
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