The Unsolvable Problem of Executive Power

Since it’s still Presidents Days for a few more hours, it’s worth taking up a challenge from one of our good-natured liberal commenters, an old pal from high school (are you paying attention, Eric?), who posted a comment on an earlier PIG book post of mine raising the question of the constitutional issues raised in the Iran-Contra scandal.  Glad you asked.  In fact, the Politically Incorrect Guide to the Presidents goes into some detail on that question, enlisting as an expert witness John Locke, and his famous chapter on Prerogative from the Second Treatise:

During the course of the Iran-Contra affair, numerous scholars and intellectuals dusted off John Locke’s Second Treatise of Government—the text that had been the primary inspiration for the Declaration of Independence. Locke’s understanding of the nature of prerogative in the executive was equally important to the Founders as they designed the office of the presidency. Locke had defined prerogative simply as “nothing but the power of doing public good without a rule” (emphasis in the original). Why “without a rule”? Because, Locke explained, “many things there are which the law can by no means provide for…. [M]any accidents may happen wherein a strict and rigid observation of the laws may do harm.” Indeed, Locke went as far as to say that “it is fit that the laws themselves should in some cases give way to the executive power. . . . [The executive must have] the power to act according to discretion for the public good, without the prescription of the law, and sometimes even against it.”

Locke’s idea of prerogative power is plainly a holdover, preserved and amplified from the historically far-reaching power of European monarchs, against which the institutions of parliamentary democracy arose—to check its too frequent abuse and aggrandizement. Executive prerogative is a concept that cannot by its very nature be delimited through formal legal means. And executive prerogative sits uneasily with the formal constitutionalism of American republican thought. No modern constitutional lawyer can accept it easily (though the federal judiciary has been very reluctant to intervene to limit or define it, dismissing several lawsuits brought by members of Congress to clarify the matter). In the scheme of the Founders, the abuse of executive prerogative was meant to be checked by the separation of powers, and congressional oversight is both necessary and proper. But even within congressional assertion of its own prerogative in the positive law, there is clearly scope for the president to exercise his prerogative. The National Security Act, for example, recognizes the general need for secrecy and discretion by providing that the president must notify Congress about covert operations “in a timely manner.” What is “timely”? There are no legislative or judicial parameters of timeliness. Reagan never notified anyone in Congress of the Iran arms sales initiative during the year prior to its exposure in November 1986. But obviously had Reagan notified Congress of the arms transactions with Iran, it would have been on the front page of the Washington Post the next day.

Examples of presidential use of prerogative power in American history would include Jefferson’s decision to consummate the Louisiana Purchase despite his own constitutional doubts; Lincoln’s suspension of habeas corpus in 1861 (the Constitution expressly stipulates that suspension of habeas “in times of rebellion” is a congressional, not executive, power); Theodore Roosevelt’s sailing of the Great White Fleet in 1907 in the absence of congressional authorization; and Franklin Roosevelt’s various transgressions of the Neutrality Act, among others. These and other examples fit Alexander Hamilton’s conception in The Federalist of the presidency as the locus of the government’s “extensive and arduous enterprises.” Jefferson, channeling Locke, argued in 1810 that there are “higher” duties than “strict observance of the laws.” But Nixon showed the limits of presidential prerogative when he infamously argued that “If the president does it, it’s not illegal”—an assertion the American public rejected.

As between Jefferson and Nixon, how is this delicate matter to be judged? While scholars and constitutional lawyers will argue for bright-line stan- dards, the example of Nixon suggests the answer that Locke gives explicitly: the people shall judge. “The people,” Locke wrote, “observing the whole tendency of their actions to be the public good, contested not what was done without law to that end, or, if any human frailty or mistake—for princes are but men, made as others—appeared in some small declinations from that end, yet it was visible the main of their conduct tended to nothing but the care of the public. The people, therefore, finding reason to be satisfied with these princes whenever they acted without or contrary to the letter of the law, acquiesced in what they did….”

The outcome of the constitutional struggle over the Iran-Contra matter would be decided in that exact way: by public judgment of the political clash in Washington. The joint House-Senate committee investigation of the Iran-Contra affair—an investigation Democrats likened to Watergate and hoped would end with Reagan’s impeachment—took a turn President Reagan’s critics had not expected when Lieutenant Colonel Oliver North appeared and delivered a devastatingly effective attack on liberals in Congress for their irresponsible meddling in foreign policy. Public opinion decisively shifted in Reagan’s favor, and the liberal dream of driving another Republican president from office died quickly. In other words, the people judged, just as Locke said they should, and judged that Reagan had acted properly, if not necessarily wisely.