The Irrelevance of Prerogative Power, and the Evils of Secret Legal Interpretation

This paper is published in Extra-Legal Power and Legitimacy, Perspectives on Prerogative (Clement Fatovic and Benjamin Ckleinerman, eds) (2013).

From the introduction:

In the tradition of Thomas Jefferson and Abraham Lincoln, prerogative power had two components: (1) the executive in a crisis would openly and self-consciously act without or in defiance of legal authority; and (2) the executive, as a justification for the exercise of prerogative power, would explain its actions to the People, who would decide after the fact whether the actions were justified. The essays in this volume analyze this conception of prerogative power, including when and how it has been deployed, its proper scope, its normative justification, and ways to cabin its use. Implicit in most of these essays is the assumption that the Jefferson-Lincoln model of prerogative still has continuing practical relevance to American constitutional democracy.  My essay takes issue with this assumption, in three steps.

I first argue that the Jefferson-Lincoln conception of prerogative power – most notably, executive action in open defiance of law or legal authority – is no longer part of a president’s justificatory tool kit. I cannot prove that no president will ever again deploy prerogative power. But I do offer reasons to support this conclusion, including the significantly greater costs today (as compared to the nineteenth century) of deploying prerogative power, and the significantly reduced need to resort to prerogative power (again, compared to the nineteenth century). Prerogative power is worthy of historical study and relevant to modern legal issues for what it reveals by historical comparison. But, I argue, it has been rendered practically non-operative by legal, political, and social change.

To claim that prerogative power is practically dead is not to claim that presidents never act extra-legally. Many people believe that some of the Bush and Obama administrations’ exercises of presidential power were based on erroneous statutory and constitutional interpretations, and thus without legal authority or contrary to law. Assuming that some of these critiques are compelling, one might think that such lawless presidential action is functionally identical to prerogative power. My second argument is that exercises of lawless executive power based on a mistaken interpretation of law are fundamentally different from exercises of prerogative power. Both can result in executive action unsupported by law. But the similarities – in operation, justification, and implication – end there.

After explaining why prerogative power is practically unavailable today and why it is not the same thing as lawless executive action based on erroneous legal interpretations, I argue that the real evil in modern presidential emergency powers, and the main hurdle to executive branch accountability in the current era of secret war, is not prerogative power, but rather executive auto-interpretation of executive authorities, and in particular secret executive branch interpretation of law. I sketch some causes of and potential remedies to this problem, as well as the costs of such remedies.