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10/03/2013

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

(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.

(Cross Posted at the Liberty Law Blog)