Harry V. Jaffa, who died January 10, at 96, attempted to re-found conservatism on the basis of its most philosophical of principles.
In my first two posts on the presidential prerogative, I discussed the nature of the prerogative and then argued that the text made the prerogative illegal. In this third post, I want to discuss what powers the Constitution does confer on the President to deal with extraordinary situations.
Imagine that one is in the situation that Abraham Lincoln faced in the early days of the Civil War, when Lincoln felt the need to suspend the writ of habeas corpus while Congress was not in session, even though the Constitution pretty clearly allows only the Congress to suspend the writ. In this situation, there are three potential liabilities that the President has to worry about. First, the President will be subject to impeachment for acting unconstitutionally. Second, the officer who the President orders to arrest and/or imprison the individual may be subject to a civil suit for damages. Third, the President himself might be subject to a civil suit for damages. (It is true that in modern times caselaw has provided qualified immunity for officials and absolute immunity for the President but these have been invented by the courts and therefore are legally problematic.)
In the case of impeachment, the President can have the person arrested and imprisoned, and then simply take the risk that the Congress will impeach him. The President knows that he has done something illegal, but he argues that it was necessary for the good of the nation. There is no immunity for the President here, but if he makes a convincing case, the Congress may choose not to impeach him. He will have violated the law, but there will be no action taken by Congress to discipline him. In this way, the Constitution allows him to take extraordinary actions, but forces him to bear the risk that his action will be seen as illegitimate and will be sanctioned. The Constitution therefore gives the President a strong incentive to make sure he is taking an action that will be seen as legitimate.
In the case of a civil suit against the President and his subordinate, once again the President is relying on Congress agreeing with him that the action was legitimate. While the actions were illegal when they were taken, the Congress could pass a law retroactively authorizing the suspension of habeas corpus and stating that all actions taken at the time should be assessed as if an authorization to suspend had existed at the time. In fact, Congress did something like this during the Civil War with respect to the habeas suspension. This statute would insulate both the President and his subordinate from a civil suit for their illegal action in imprisoning an individual. And the statute is probably constitutional, because Congress’s power to suspend the writ likely also includes the power to suspend the writ retroactively. But once again the President (and his subordinate) would be relying on the Congress being willing to pass this statute.
In these cases, then, the Constitution does not authorize the President to exercise a prerogative, but instead allows him to take action and then to hope that the Congress will allow or authorize his action. I suppose that one might call this a prerogative, but I don’t think of the prerogative this way.
While this type of illegal action that is authorized by the Congress will probably work for some other powers besides the suspension of habeas, such as a presidential initiation of war where the Congress retroactively declares the war, it may not work for other powers that neither the President nor the Congress has the authority to authorize. For example, the Fourth Amendment appears to limit both the President and the Congress and therefore Congress could not authorize the President’s violation. It is, of course, possible that the content of the Fourth Amendment allows more searches and seizes during wartime or in extraordinary situations, but if not (or if the expanded content does not allow the President to take the actions he regards as necessary), then he will be acting illegally and the Congress will not be able to retroactively authorize his action. (There are issues here as to whether Congress could immunize the President or his subordinate from violations of the 4th Amendment, but I am skeptical that it could do so, at least absent providing an alternative adequate remedy, even though modern law would appear to allow it.)
In the end, then, I don’t believe that the President has a prerogative, but I do believe that the Constitution provides a more limited substitute in certain situations, depending on the clause at issue. As with other aspects of the Constitution, there is often no single simple answer, but instead the result depends on the particular clause and the particular question being asked.