On Presidential Prerogatve and Executive Orders
Concept of executive orders, and more generally that of prerogative, is not necessarily unconstitutional, the concept often seems to serve as a cloak to cover unconstitutional actions which do not fit the definition of genuine executive prerogative
By Tim Dunkin
CanadaFreePress.com
The trend in modern American government for many
decades has been toward a strengthening of the power
and influence of the presidency over and against
that of the Congress. As a result, many who
are concerned about the constitutional system of
checks and balances in our federal government are
increasingly dismayed by what often seems like an
executive branch that is out of control, regardless
of which party or politician controls that office.
Does the modern American presidency really mirror
what the Founders intended in our Constitution, or
has the office of the presidency grown into a force
that overturns our system of checks and balances,
especially through its use of what are often seen by
observers to be unilateral actions, especially as
enacted through the use of executive orders? In
short, can the president really act as he wishes,
simply because he has a pen and a phone?
This issue of the propriety of presidential power to
act unilaterally, apart from the consent and input
of the other branches and the people themselves,
revolves around an old question which has existed in
constitutional and republican theory for centuries.
This is the question of “prerogative,” which can be
defined as “the right or ability of the executive to
act on his own independent judgment apart from the
legislature or the people.”
The most formative discussion about prerogative, as
it applies to the American constitutional system,
begins with John Locke’s treatment of the question
in his second Treatise of Government. Locke
allowed for the limited use of executive prerogative
in situations in which the legislature was not in
session, where some emergency demanded immediate
action, or where the legislature had not previously
legislated in an area which required immediate
attention. In such cases, the executive could,
for the good of the people, act in such a fashion as
to go outside of, or even contrary to, the laws when
it was absolutely necessary.
“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
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.” (John Locke, Second Treatise on
Government, p. 84)
This ability of the king to exercise his
prerogative, however, was not unlimited.
Rather, it was tempered by several considerations
besides that of requiring an emergency.
Actions undertaken through the exercise of
prerogative also needed to be for the public good,
had to benefit the people themselves, and could not
be undertaken against the liberties of the people in
the commonwealth.
These ideas about prerogative were expanded upon by
the Founders as they crafted the Constitution.
It was at this time that the nature of prerogative
was brought to the fore: does the executive’s
prerogative consist of a plenary set of power
possessed by the executive as his right which are
severally limited by the people and the legislature
whenever those groups pass laws, or does the
executive possess only such prerogative powers as
are essentially allowed to him through the inaction
or specific injunction of the legislature and the
people, and which can be taken away once the
legislature or the people themselves make a positive
law about a matter? The Founders settled
firmly on the side of the latter, and in the
Constitution they defined the powers of the
presidency rather closely. In this, they were
also echoing Locke,
“And therefore they have a very wrong
notion of government, who say, that the people have
incroached upon the prerogative, when they have got
any part of it to be defined by positive laws: for
in so doing they have not pulled from the prince any
thing that of right belonged to him, but only
declared, that that power which they indefinitely
left in his or his ancestors hands, to be exercised
for their good, was not a thing which they intended
him when he used it otherwise: for the end of
government being the good of the community,
whatsoever alterations made in it, tending to that
end, cannot be an incroachment upon any body, since
no body in government can have a right tending to
any other end: and those only are incroachments
which prejudice or hinder the public good.” (ibid.,
p. 85)
In other words, the president’s prerogative does not
extend to areas about which positive law has been
passed through the normal constitutional mechanism
and in normal times of peace and security.
Indeed, in the Federalist Papers, Alexander Hamilton
described several of the president’s powers as
“prerogatives,” which involved the intermixing of
executive power with that of one of the other two
branches and which ultimately lead to Locke’s
discussion upon the role of prerogative shown above.
For instance, he describes the veto power of the
president (which involves the president acting in a
form of legislative capacity) with that term, and
also the use of the pardoning power by the president
(because it involves a judicial capacity when
overturning a previous judicial conviction) (see
Federalists No. 69 and 74, respectively).
However, the president is only elsewhere in Article
II, Section 2 granted the power to fill up vacancies
on the courts and other offices when the Senate is
in recess, whose commissions expire once the Senate
returns to session – an act which can be loosely
viewed as prerogative due to “emergency”
circumstances (the need to fill on office so that
the business of government and execution of justice
can be performed in a timely manner). Indeed,
even the seemingly broadly-constructed mandate to
“…take care that the laws be faithfully executed” is
itself constrained by Congress’ power to “…make all
laws which shall be necessary and proper for
carrying into execution the foregoing powers…” (Art.
I, Sect. 8) which places into Congress’ hands the
mechanisms by which the laws are to be executed.
Even between two Founders as opposed to each other
with regard to the size and scope of government as
were Thomas Jefferson and Alexander Hamilton, there
was actually little real disagreement on the
legitimacy and constraints upon presidential
prerogative. Jefferson – who had first-hand
experience in this area, having served two terms as
president – believed in Locke’s “emergency powers”
approach to prerogative, and even used an appeal to
prerogative to justify his extra-constitutional
acquisition of the Louisiana Territory in 1803.
However, Jefferson also believed that any use of
presidential prerogative must be subsequently
affirmed by the legislature and the people if the
act were to stand. Hamilton’s approach was
somewhat different as he sought to find a basis for
presidential prerogative within the implied powers
granted by the Constitution. However, his
approach to prerogative still fundamentally
subordinated its use to the original construction of
the founding document.
Despite these differences, neither of them held to a
broadly-constructed view of prerogative, and both
(as well as the rest of the Founders, and most of
their generation) understood prerogative to involve
special and specific powers exercised by a president
which involved his dipping into the plenary powers
reserved to the legislature and the people.
There was no view among them of a plenary executive
only specifically constrained from using his
rightful power by an act of the legislative.
This brings us now to the question of executive
orders, and whether they do, or at least can, fall
under the rubric of legitimately exercised
prerogative.
Strictly speaking, executive orders are
extra-constitutional, as the text of that document
nowhere provides for them. However, despite
the bad press they get from modern conservatives and
constitutionalists, executive orders are not some
new device invented in recent decades. In
fact, executive orders go all the way back to the
beginning of the Republic, George Washington having
signed eight of them into effect during his tenure
in office. However, recent decades have seen a
shift in the powers which presidents exercise
through this artifice.
Originally, executive orders were intended as
clarifying statements applied to within the
executive branch, defining how the president and his
subordinates would carry out their duties as
stipulated under the laws enacted by Congress or as
defined by the Constitution itself. As such,
while technically extra-constitutional, they were
not contradictory to the Constitution, and thus were
not unconstitutional. Unfortunately, as the
decades went by and the powers of the presidency
expanded to fill the vacuum left by Congress, the
scope and extent of executive orders increased as
well.
While many EOs still act as clarifications and
policy directives within the executive branch, many
do not. The past century has seen an
increasing trend in presidents resorting to EOs to
perform acts which can only very loosely be defined
as exercising powers implicitly granted by Congress
for the execution of laws duly passed. Indeed,
several acts of various presidents - one example
would be Truman’s takeover of the steel industry
during the Korean War to prevent a strike - have
gone far enough over the line to have been struck
down by the Court (see, for example, the case of
Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579).
More recently, several of President Obama’s actions,
including that which requires the states to allow
so-called “transgendered” students to use the
bathroom of the opposite gender, involve
unacceptable overstepping of presidential power
against both the powers reserved to the states
themselves through the 10th amendment, as well as
going beyond a reasonable interpretation of powers
granted to the executive branch by Congress through
the establishment of the federal Department of
Education. Likewise, President Obama’s pointed
refusal to enforce our current immigration laws –
which has drawn the rebuke of Congress, the majority
of the people, and now the Supreme Court – consists
of a determined refusal to “faithfully execute” the
laws of the land, and thus constitutes an overstep
into the realm of legislative policy-making.
Because presidents seek to justify the use of
executive orders and other extra-constitutional acts
under the umbrella of presidential prerogative, it
is within this framework that any individual
executive order must be judged. Therefore, the
legitimacy of any executive order (or other
extra-constitutional action of the president) which
extends beyond the scope of intra-executive
departmental matters must be demonstrably good for
the commonwealth as a whole (i.e. does not just
directly benefit one or a few interest groups), as
well as being demonstrably required because of an
emergency situation. As we can see, many of
President Obama’s recent actions do not meet these
qualifications, and therefore do not deserve to be
viewed as legitimate. Indeed, in areas – such
as immigration law – where Congress has specifically
enacted legislation under its
constitutionally-derived powers, there can be no
credible argument for the legitimacy of Obama’s
actions. Certainly, no case can be made that
Congress hasn’t acted, nor that there is some
emergency that requires immediate executive action
without reference to congressional activity.
Simply because the President thinks an issue is
important does not mean that it merits the title of
“emergency.”
The question arises as to what role congressional
review would have with respect to executive orders
and other acts. It should be apparent that any
congressional disapproval of a “cross-boundary”
executive order by the president should itself not
be liable for presidential review and possible
vetoing. This is the case for a couple of
reasons. First, since the presidential action
in question is itself extra-constitutional, it does
not merit the same sort of constitutional mechanisms
that a constitutional action would – instead, its
disposition falls back upon to more general
principles of commonwealthian republicanism, which
places the legislative as the highest power
delegated by the people. Second, because the
president has already acted, his input has already
been given – congressional approval, however
retroactive, is all that lacks, and is what must
then be given or withheld.
Thus, while there certainly is a place for the use
of executive prerogative within our constitutional
republican framework, many (perhaps most) of the
acts of the current administration, as well as of
previous administrations within the past century,
which are justified under a theory of prerogative,
including those which we refer to as executive
orders, do not rise to the level of legitimate
“prerogative” as it has been understood within the
evolution of our republican and commonwealthian
system of government. While the concept of
executive orders, and more generally that of
prerogative, is not necessarily unconstitutional,
the concept often seems to serve as a cloak to cover
unconstitutional actions which do not fit the
definition of genuine executive prerogative.