Executive Prerogative in the Unitary Executive.

The Constitution of the United States is arguably one of the most important documents in the history of the world. It has not only influenced numerous people but has served as the very template by which almost every single country in the Western Hemisphere has modeled their respective governments. It single handedly issued in a new age of liberalism that spread throughout the world. The ideas that had been written were truly revolutionary and their effect on the history of this world cannot be measured. However, such an eventful and inspiring document has lent itself to numerous interpretations throughout this nation’s life. This ability to be interpreted even led to the rise of America’s first political parties. Hamilton’s Federalist Party generally opted in the belief of a strong central government, where the federal government held a wider range of power. They were disillusioned by the Articles of Confederation which operated too loosely and gave the individual states more power and jurisdiction. Therefore, they argued that in order for a nation to prosper it must have a central authority with shared powers. Jefferson’s Democratic-Republicans were generally more agrarian. They believed in the idea of a decentralized government. Having lived under a constitutional monarchy, they attempted to stray away from any semblance of that. They preferred legislative councils and plural executives to ensure that power is always shared. They viewed the Constitution in a very strict manner allocating only the powers that are due to each branch, leaving almost no room for interpretation. In short, one could summarize each party as having either a loose interpretation or a strict one.

Yet, you can not say that either party had a true interpretation. The vagueness of the Constitution has left many questions unanswered and open to discussion. Now, it is much more difficult to come up with an answer let alone with a consensus when it comes down to Constitutional crises. Thankfully, we have the philosophical influences, the historical context, and the very words of the Founding Fathers as they wrote on these ideas. Now, we are presented with yet another Constitutional question, can the President of the United States, during a time of emergency, use powers that have been delegated to the Congress of the United States? Obviously, such a question is absurd. Our immediate answer would be a unanimous no because we have been taught to believe in the separation of powers and in the regulation of powers. At face value, the question is an open and shut case. However, when one examines the ideas, the discussions, the writings, and the debates the Framers had, one can see that the answer to the question at hand is much more complicated. I intend to, throughout this paper, prove that according to the Framers, the Constitution does allow for the President to gain powers during crises and emergencies that would otherwise be delegated to Congress.

The Congress of the United States is the most detailed out of the 3 branches that are described in the US Constitution. It’s article (Article 1) has over 10 sections that lay out its functions and duties, more than the articles allocated to the description of the President’s and Supreme Court’s respective functions. The Framers put a lot of trust into a legislative body by delegating it a wide range of power. It is without a doubt that Congress is the most powerful out of the three. The Founding Fathers did not want a government where power, during times of peace, was instilled into one man. Instead, they believed in the parliamentary process where debate, discourse, and ideas lead a nation and not man. They believed in the ideas that were introduced by the Athenian Assembly, the Roman Senate and later expanded upon by Enlightenment Age philosophers such as Locke. Yet, like all sensible men, they realized that such a body is not suited for emergencies or events that require decisive action. At the time, debate raged on the idea of having a unitary executive as opposed to a plural executive. Plural executives were rather popular at the time and were featured in the constitutions of various states. Ben Franklin, for example, was the President of the Executive Council for the State of Pennsylvania. Plural executives were meant to mirror the legislative process within the Executive Branch. They were a second, smaller Congress to ensure that one man would not have absolute power. Even so, the Founders rejected that idea. Instead, they wrote what is now known as “The Vesting Clause.” Article 2 Section 1 states that “The executive power shall be vested in a President of the United States.” The Framers, rather than creating a plural executive, they created one where one man held the responsibilities that would be headed by such a leader. But if the Founders feared the idea of one man holding an immense amount of power, why vest executive powers in only one President of the United States? Weren’t they fearful of one man holding too much power? Well, yes. The Writers of the Constitution were fearful of such a notion but they were also fearful of another, the inactivity and indecisiveness of parliaments and councils. Procedures and debates are great. They allow for compromise and for the diversification of opinion. Nevertheless, legislative discourse and parliamentary procedure at times hinder immediate action. In order to remedy this, the Framers decided upon creating a unitary executive. James Wilson, who was a Constitutional delegate from Pennsylvania and one of the first Associate Justices of the Supreme Court, fervently argued for the Unitary Executive. In the Pennsylvania Ratification Convention of 1787, Wilson argued that in “numerous executives… we know there is neither vigor, decision, nor responsibility in them.” A room full of varying opinions will never reach a decisive conclusion. Action is replaced by constant bickering, points of order, and parliamentary inquiries. Consequently, a branch was created where those procedures could not be an obstacle. By vesting all powers in one person, these procedures were completely done away with. The President of the United States can operate without being held down by the pleasantries that grace the chambers and halls of Congress. Interestingly enough, this idea was shared by many. In fact, Alexander Hamilton wrote about it extensively in Federalist 70.

Hamilton is arguably one of the most underrated Founding Fathers. After having been born in the most undesirable conditions, he rose above his station to become a Lieutenant Colonel in the American Revolution. Afterwards he became a lawyer, a Constitutional delegate, and would ultimately serve as the first Secretary of the Treasury under President George Washington. Besides those achievements, his greatest contribution to the United States is arguably having co-written The Federalist Papers. The Federalist Papers were a collection of 85 essays where Hamilton, alongside James Madison (Constitutional delegate from Virginia and the 4th President of the United States) and John Jay, (1st Chief Justice of the United States) argued for the ratification of the United States Constitution. In it, they provided greater insight into the minds of the Framers during the Constitutional Convention than any other document written at the time. In fact, their explanations and their defenses of the Constitution are so detailed and so concise that these essays are the most cited documents in the Federal Legal System besides the Constitution itself. These essays help us truly understand what the often vague and non-descript language of the Constitution was originally meant to say. In fact, usage of The Federalist Papers has increased in past years thanks to a number of originalists and constitutionalists, such as the late Justice Antonin Scalia and Justice Clarence Thomas, referring back to the comments of the Founding Fathers. In other words, true constitutionalists will always refer back to what the authors said about their writing rather than just letting themselves interpret it according to their own ideology.

In Federalist 70, Hamilton further develops the idea of a unitary executive as described in Article 2 Section 1. He begins by refuting the idea that in a republic, “a vigorous Executive” cannot exist. At the time, the Unitary Executive was just seen as yet another constitutional monarchy. Another man with unilateral power. Yet, Hamilton sees a contradiction in their obstinate belief against a singular executive officer. He goes on to demonstrate that the rejection of this office would ultimately lead to their “condemnation of their own principles.” The principles in question were the ideas that the Enlightenment had put forth in the previous century in terms of the relationship between government and its citizens. Americans had revolted against the British Monarch holding onto the belief that to secure the natural rights of man, “Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.” In order for the executive to perform its righteous duty of securing the rights of man, it must act unilaterally without impediment allowing it to act quickly. Hamilton better explains this idea stating that “It is essential to the protection of the community… the steady administration of laws… to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.” In other words, the purpose for having one person as President is to ensure that threats to the everyday rights of Americans are met with swift and decisive action. To further hammer the notion, Hamilton draws back to the period of time when Rome was a republic.

To draw back to Rome is an unusual anecdote to draw back to given that we have been taught to understand Rome as an empire with an emperor who held absolute power as both man and god. The Roman system of government, according to many, is completely antithetical to the Liberal government the Constitution has provided. Yet, to the dismay of many, our Constitution draws from the Roman Republic and their government. Prior to the expansion and overall transformation of Rome as an empire, it was first a republican government. It consisted of a body of elected representatives. These men formed what is known as the Senate. The Senate would ultimately vote on a consul who acted as the Chief Executive. The Roman Republic had a Legislative and an Executive branch that were both elected. Sound familiar? These ideas are what influenced the Enlightenment, especially given that the Enlightenment was part of a larger re-discovering of Greco-Roman ideals which gave humanity a “re-birth” (wink,wink) and brought us out of what we now know as the Dark Ages. As a result, the ideas of the Roman Republic influenced our government. Hamilton understood this notion and used it to explain the need for a unitary executive. He articulates that even though there was a legislative process in Rome, the Senate would, in times of emergency, allow the consul to assume powers for a limited time “under the formidable title of Dictator.” The Roman consul would assume emergency powers because one man is better equipped at making swift and decisive actions than a group of 100. The Executive must not be restrained in times of emergency as long as it acts on good faith and behavior. Otherwise, it is a feeble one and in the words of Alexander Hamilton, “A feeble Executive implies a feeble execution of the government… and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”

This phrase then ultimately begs the question, what exactly constitutes a non feeble Executive and by extension a non-feeble Government? If we continue to read down the essay, we quickly pick up on Hamilton’s answer to the previous question. He concludes that an “energetic Executive” constitutes a non feeble Executive. A non feeble Executive is one that is willing to act quickly and swiftly. But how does an Executive that acts quickly and swiftly create a generally stronger government? Once you allow for the executive to move freely in good faith and good behavior, you allow for that branch to move at an extraordinary speed in fending off encroachments on the rights of citizens. An energetic Executive is an effective Executive. Obviously, to allow an Executive to move freely in times of peace can lead to a tyrannical state. Power is addicting and can lead even the righteous man towards the worst possible path. Therefore, the easing of restrictions on the Executive should not be used during times of peace. When emergencies and crises are not plaguing our country, legislative discourse should take center stage. However, in times of emergency the Unitary Executive was created as a response to the slow moving Legislature. During these times where decisive thinking is necessary, the Executive reserves the right to take action to ensure that the problems are solved as soon as possible. The Framers implied this power by creating an Executive with one person, making this branch much more suitable to handle these problems like in the times of the Roman Republic. To quote the political writer and philosopher Jean Louis De Lolme, “the executive power is more easily confined when it is ONE.”

While Hamilton eloquently and at times in a very lengthy manner argues for a decisive Executive, John Locke first proposed the idea harkening back to the same period that Hamilton referenced in Federalist 70, the Roman Republic.

John Locke, who is known as the “Father of Liberalism”, was the greatest influence on the United States Constitution. His words appear in both the Declaration of Independence and the 14th Amendment. In order to understand our Constitution we must first understand John Locke and his writings given how much his writing, specifically his Second Treatise on Government, had been used as a guide for the Constitution. In the Second Treatise on Government, Locke argues for essentially every single aspect that we find in our Constitution, from the idea of natural rights to the separation of powers. One notion which he argues for and is still used to this day is the idea of Executive Prerogative. Locke argues that the Executive reserves the right to take action at any cost during times of necessity. The Executive has the prerogative of acting swiftly and quickly during emergencies even if it means by bypassing the United States Constitution. The Framers clearly agreed with Locke because they created an Executive that has that ability. By confining it to one person, they signal that this particular person reserves the right to act in times of emergency because one person is better equipped than a legislative body when it comes down to making quick and necessary decisions.

The idea of Executive Prerogative is embedded within our Constitution. By modeling after the Roman Senate and Consul and by confining it to one man, the Founding Fathers clearly have created a branch that is apt for making quick and necessary decisions in the face of emergencies. The Constitution, without a doubt, allows for the Executive Branch to assert such prerogative. In the history of this nation, past Presidents have asserted that Constitutional power to protect the liberties of the American people. President Washington, in 1793, issued a Proclamation of Neutrality as Britain and France geared themselves for war. At the time, the nation and by extension Congress was deeply divided as to who to support in the war. Many officials, such as Thomas Jefferson, who was Secretary of State at the time, openly supported the French and reminded Americans of the treaty they had signed with France. Alexander Hamilton and the Federalists opposed the Jeffersonian Democratic-Republicans arguing that such a treaty was null since the person whom they had signed with was dead. (Because he got his head chopped off. Viva La France!) The Hamiltonian Federalists opted to support Britain for both economic benefit and cultural ties. Clearly, a huge rift was opening in the United States and the divide was so great, that to support either side would alienate a huge swath of the American public, possibly leading to riots and protests. Sensing the urgency of the matter, George Washington declared the United States neutral with his Proclamation of Neutrality of 1793. However, if we do not apply the implied Executive Prerogative powers, then what Washington had done was, by its very nature, unconstitutional. Under Article 1 Section 8, Congress is explicitly given the ability to declare war but because it is given the ability to declare war, it is implicitly given the ability to declare peace. George Washington, according to strict constitutionalists, committed an unconstitutional act. Yet, when you apply the Executive Prerogative, Washington did not commit an unconstitutional act. Having been vested with the sole control over the branch responsible for acting decisively, he used his right and usurped some of the power that would ordinarily be delegated to Congress during an extraordinary time. He used his right to protect the country.

Interestingly enough, Washington’s use of Executive Prerogative was not the only time in which these implied powers were used. In 1861, at the start of the Civil War, Abraham Lincoln suspended the writ of habeas corpus. The writ of habeas corpus is an idea that is derived from English Law. It quite literally means “to produce the body” but in the legal sense, it is the right of the person to appear before a court after having been arrested. This is usually used to determine unlawful detentions. At the time, the Union Army was forced to make numerous detentions to prevent Confederate leaders and sympathizers from further planning. In other words, these detentions were strategically important in preserving the Union and ending the Civil War. But, there is a problem with Lincoln’s suspension of habeas corpus. Congress has the implicit power to suspend habeas corpus since the “Suspension Clause” falls under Article 1 which is entirely dedicated to Congress. Lincoln did not have the Constitutional Authority to suspend habeas corpus, if you read the Constitution from a strict and word for word basis. Yet, it was his prerogative to suspend habeas corpus because it was necessary to do so immediately given the pressing matter at hand. Once more, President Lincoln was more apt to make a quick decision than Congress, particularly because of how urgent it was.

At first glance, it seems as if the Framers had allowed for the President to gain unquestionable power by simply expressing his prerogative during a time of emergency. It seems as if the President can simply become a tyrant just by using the occasion. It seems frightening that an ambitious man can take advantage of the situation, something which countless dictators have done. So, is there even a check on Executive Prerogative? The answer is yes. It’s Congress. Congress can pass bills and legislation to repeal orders and emergency proclamations. Congress has the ability to take us out of emergencies and repeal any Presidential order by passing Legislation. Nevertheless, the President still has the right to pass those orders in times of emergencies.

The Framers were careful in what they created. The American Experiment that they had designed was meant to anticipate every possible scenario imaginable. They understood that the future was unpredictable but they also understood the need to anticipate and prepare for the future. They knew of the dangers that a Legislative body could possess. A slow moving branch could cause the unintended death of many. In response to such a frightening thought, they created an Executive that could move in a freer sense making it suited for emergencies. The Executive was created to respond when the Legislative cannot move past parliamentary procedures. These men were men of action. They believed in debate but they also believed in the need to move with urgency and decisiveness. They witnessed the perils of a weak and unresponsive government which prompted them to write another, stronger Constitution. The Founders of this Nation believed that the government was meant to protect the rights of its citizens and, at times, in order to protect those rights, decision, and not discourse, must take center stage.