Blurring the Lines: The Continuities Between Executive Power and Prerogative

Clement Fatovic

The idea that the President of the United States possesses prerogative, or what John Locke defined as the “[p]ower to act according to discretion, for the publick good, without the prescription of the Law, and sometimes even against it,” is deeply unsettling. According to Locke’s formulation, prerogative is supposed to be used only in extraordinary circumstances and only until the Legislature can remedy whatever defect in the law requires resort to extra-legal measures, but the notion that any individual is ever allowed to exercise such enormous discretionary power is difficult to square with a commitment to limited government and the rule of law. Prerogative entails the use of ad hoc and variable measures that are inconsistent with the predictability and uniformity that the rule of law has always required. The United States Constitution does contain several provisions that could be interpreted as emergency powers, including the power to suspend the writ of habeas corpus and the presidential power to convene both houses of Congress “on extraordinary Occasions,” but it makes no mention of any power to act extra-legally. Thus, it is no surprise that legal and political scholars characterize prerogative (when they acknowledge it at all) as an aberration from the normal operation of executive power. Whereas prerogative is a highly discretionary power that operates outside the bounds of the law, executive power is a rule-bound power that operates within the bounds of the law.

I argue that the rigid opposition that has dominated scholarship on this topic tends to overstate the differences between executive power and prerogative. Instead of viewing these forms of power as belonging to separate and distinct categories, it might be more accurate to view them as lying along a continuum that stretches from the least rule-bound to the most rule-bound exercises of power. This has important implications for how we understand both prerogative and executive power. Contrary to those who would suggest that prerogative is a wholly lawless power, this means that legal rules structure and regulate exercises of even the most extraordinary forms of prerogative. Prerogative, as Locke defined it, is supposed to be a narrowly tailored response to very specific deficiencies in the law, not an unfettered power that gives executives carte blanche to do as they please. At the very least, law provides a normative framework within which prerogative operates. That is, an exercise of prerogative that violates one law or set of laws does not necessarily challenge the entire system of law or rule of law values. Contrary to those who would argue that executive power is or ought to be wholly defined and structured by law, this means that there is an unavoidable element of discretion irreducible to law in even the most ordinary exercises of executive power. That is, even routine exercises of executive power either exceed the law or have the potential to do so, if only in small ways. In short, some forms and exercises of executive power are far more rule-bound and others are far less so. This may help explain why executive power is such an indistinct concept in so much legal and political thought.