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July 21, 2007

Monarchical powers of the Executive

Here is what Cheney was referring to in that NY Times interview.

Courtesy DIANE Publishing:

One constitutional dispute early in the Jefferson Administration was over the Louisiana Purchase. What would the party whose adherents had insisted on a Senate role in negotiating the Jay Treaty say about the President's power to negotiate the Purchase? Jefferson's Secretary of State Albert Gallatin supported the Louisiana Purchase by saying that the purchase eventually would have to be ratified by treaty and that its negotiation therefore belonged to the President under the Constitution. Jefferson did not embrace Gallatin's constitutional argument. Instead, the President decided to go through with the Purchase, without abandoning his view that the Constitution severely limited the President, by asserting an inherent extraconstitutional prerogative power for the Executive that was more sweeping than anything Hamilton had ever put forward. Jefferson justified his decision this way:

A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself... absurdly sacrificing the end to the means.

One of the remarkable aspects of Jefferson's assertion is the stark way in which it poses a fundamental constitutional issue. Chief Executives are given the responsibility for acting to respond to crises or emergencies. To the extent that the Constitution and laws are read narrowly, as Jefferson wished, the Chief Executive will on occasion feel duty bound to assert monarchical notions of prerogative that will permit him to exceed the law. Paradoxically, the broader Hamiltonian ideas about executive power - by being more attuned to the realistic dangers of foreign policy - seem more likely to produce an Executive who is able and willing to live within legal boundaries. Thus, the constitutional construction that on the surface looks more dangerous seems on reflection to be safer in the long run.

After Jefferson, the notion of executive prerogative was put on the shelf. Instead, Jeffersonian Presidents began asserting Hamiltonian ideas about executive power. Although we will discuss the use of force separately below, Sofaer's comment on the post-Jeffersonians bears quotation here:

Although Presidents during this period claimed no inherent authority to initiate military actions, Madison [departing from the theory of the Helvidius papers] and particularly Monroe secretly used their powers in ways that could have been justified only by some sweeping and vague claim - such as the right to use the armed forces to advance the interests of the United States.

Posted by Mike at July 21, 2007 03:42 PM

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