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Thursday, July 21, 2016

On Presidential Prerogative 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

On Presidential Prerogative and Executive Orders



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. 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

On Presidential Prerogative and Executive Orders



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.

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