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Does the President Possess the Prerogative? Part II: The Textual Argument

(In my first post, I discussed the nature of the prerogative power.  Here I discuss whether it exists under the Constitution.)

If one were to find a presidential prerogative in the Constitution, where would it be located? Perhaps the most common answer is that the it is given to the President in the Executive Power Vesting Clause. While I believe that the Clause does provide substantive powers to the President, I don’t think it gives the President a prerogative.

There is a significant dispute as to whether the Executive Power Vesting Clause provides powers to the President. The argument for concluding that the Clause provides powers involves a comparison of the Executive and Legislative Vesting Clauses. The latter provides that “All legislative Powers herein granted shall be vested in a Congress of the United States.” The former provides that “The executive Power shall be vested in a President of the United States.” While the legislative power is limited to the list of powers conferred on the Congress, the executive power is not.

Under this reading, the Constitution confers all of the traditional executive powers on the President that it does not either give to the Congress (such as the power to Declare War, which the King of England traditionally had) or limit (such as the power to appoint executive officers, which the Kind had alone, but which the Constitution gives to the President along with the Senate).

The alternative reading views the President’s powers as limited to the list of powers listed in Article II, such as the Pardon Power and the Commander in Chief Power. It views the herein granted language of the Legislative Vesting Clause as simply about denying to Congress powers that the state legislatures enjoyed, based on federalism concerns.

But there a strong argument against this alternative reading. Unless the Executive Power Vesting Clause is read to provide substantive powers to the President, the Constitution leaves out many powers that one would assume it had allocated to the federal government. Most importantly, the foreign affairs power of the President – making him the primary entity communicating with other nations and giving him the power to make executive agreements – could not otherwise be found without reading the Executive Power Vesting Clause to have substantive authority.  For a strong defense of this Hamiltonian theory, see here.

But even if one reads the Clause to convey substantive powers, that Clause does not give the President prerogative powers. The Clause only conveys powers that have not been given to the Congress or limited or taken away. But there is a Clause that takes away the prerogative power: The Take Care Clause. That Clause, passed to confirm that the President did not enjoy the suspending or dispensing power, pretty strongly suggests that the President must follow the laws and cannot ignore them.

Thus, even though the Executive Power Vesting Clause conveys substantive powers, it does not convey the prerogative power.  In my next post on this subject, I will discuss how the Constitution addresses situations where extraordinary circumstances appear to require the President to take action that is unconstitutional or otherwise illegal.

Reader Discussion

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on October 03, 2013 at 22:27:56 pm

Good stuff, Mike--looking forward to Part III. Just by way of clarification: do we (you) think that prerogative (the power to ACT outside or even against the law) is the same as the power to suspend (the power to NOT enforce the law--without doing anything without or against it, or transgressing it)? Textually (or as I would say, structurally) the Take Care Clause goes principally to suspension--no? It's a DUTY to perform, not a prohibition against going overboard. (You'll then have to make the Take Care Cl fit somehow with the power to pardon--not easy or straightforward; but for present purposes a secondary problem.) Prerogative, in contrast, to me sounds more like establishing a legal rule (of decision) without a legislative basis; and if that's right, the textual barrier is the Vesting Clause of Article I (coupled, maybe, with the Necessary and Proper Clause).

I may well have this wrong. Just curious how you think abt it.

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Mike Greve
on October 06, 2013 at 00:10:25 am

Mike--

I am no lawyer, although I do study the history of law. Can you clarify the difference between "prerogative" and "power"? At some level, these seem to me to become ambiguous, at least as applied to an American office.

As I understand these things, our current usage of the word "prerogative" stems from English law. In English usage, historically, "prerogative" powers were those powers retained by the monarch, unlimited by the common law. That is, over time common law restraints that limited the power of the monarch amounted to constrictions of the prerogative power. In the beginning, as it were, there was the prerogative--but as Parliament and the Commonlaw lawyers asserted themselves, the sphere of the prerogative shrank. Thus, for example, prior to 1688 a part of the prerogative power of the king was to declare his own heir, independent of parliamentary interference; after 1688, the power to establish the heir to the throne rested in parliament.

But in the United States, *all* of the powers of the office of the Presidency are delegated powers, either directly, or else as "necessary and proper." There is no royal prerogative to restrict, because the office is a product of the Constitution.

In England, by contrast, the office either predated the law, or else (depending on who was doing the arguing, and when) the office was coeval with and alongside the law. To be sure, all legitimate monarchs as part of their coronation oath swore to uphold the laws of the realm. But no one argued that the office of the monarch was *created* by the law, whereas in the United States the office clearly comes into existence as a result of the fundamental law itself. (Recall that the term "time immemorial" used by Chief Justice Coke and other commonlaw lawyers of the 17th century referred to a specific date in English history--if I recall correctly, it meant those laws that were in effect during the reign of Edward the Confessor.)

So it is meaningful to talk about the prerogatives of the monarch, in England, and to assign to that term a meaning different than that connoted by the term "power." But in the United States, all of the powers of the office are consequent to the Constitution. Under these circumstances, what is the difference between prerogative and the simpler word "power"?

I mean this as an honest question--not trying to call you out, but rather to understand the distinctions you are conveying.

Many thanks, in advance,
Kevin

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Kevin R. Hardwick
on October 06, 2013 at 09:53:18 am

Mike--

I would be very surprised if the Founders ever at any point intended to invest in the Presidency the power to suspend law. All of those Founders who were trained in law (which is to say most of them) were well familiar with the circumstances of the Glorious Revolution. One of the central issues that the events of 1688 clarified was whether or not the Monarch possessed a Suspending Power as part of the Royal Prerogative. James II asserted the power to suspend law and applied it in order to suspend those laws that restricted Catholics, especially (if I recall correctly) those that disallowed Catholics to serve as officers in the Royal Army. In the English Bill of Rights that followed the Glorious Revolution, the Suspending Power was explicitly forbidden. All of the Founders knew this and held it to be salutary--all of them celebrated the Glorious Revolution and its constitutional consequences. Many of them feared that the powers of the Presidency already impinged too closely to Monarchy (see the discussions of the Presidency and the reactions to Hamilton's speech, in Madison's notes of the Philadelphia Convention). It is hard to imagine any of the them extending powers to that office that, in the English Constitution, had already explicitly been expunged from the Royal Prerogative.

All best,
Kevin

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Kevin R. Hardwick
on October 06, 2013 at 10:05:40 am

An extension: There are, if anyone cares, two excellent recent definitive studies of the Glorious Revolution, one by Steven Pincus, the other by Tim Harris. If I recall correctly--its been a few years, and I have taught both books, so the details run together--the best narrative of James II's use of the Suspending Power, and of its ban in the English Bill of Rights--is in Harris, REVOLUTION: THE GREAT CRISIS OF THE BRITISH MONARCHY, 1685 -1720. Pincus' book is titled 1688: THE FIRST MODERN REVOLUTION, and is superb--he discusses suspension within the context of James' efforts to create royal absolutism along the lines of what was happening in France.

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Kevin R. Hardwick
on October 06, 2013 at 11:28:12 am

Kevin, I agree w/ all of what you say. Not sure the semantics between "power" and "prerogative" matter. I don't think there's either an executive power to suspend or a power to establish binding rules outside legislatively enacted law (altho both proposition turn out to be very tricky once you get into this stuff--e.g. is equity a form of prerogative?) My point was simply that suspension and prerogative are somewhat different problems, and that the structure of the Constitution reflects that.

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Mike Greve
on October 06, 2013 at 13:26:35 pm

Mike (Greve)--

Thank you--good to know I am not entirely in left field. Or right field, for that matter :) I most definitely did not intend any criticism of your post at all.

The issue is interesting--I am much enjoying Mike (Rappaport's) commentaries on it.

Well wishes,
Kevin

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Kevin R. Hardwick

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