The Prerogative Powers of the President

Richard Pious’ book on the presidency has always been one of my favorites. Here’s a synopsis of his description of the prerogative powers of the president:

Prerogative power

Although presidential power seems circumscribed by constitutional limitations and the difficulties of working with coordinate institutions, presidents have a way around these difficulties. At times they claim vast prerogative powers, based on their own reading of the Constitution. Armed with these powers, they unilaterally take actions to resolve serious policy disputes or to manage crises, and then justify their actions to Congress and the American people thereafter, defending both the legitimacy of acting (their right to exercise power) and the authority of their actions (the wisdom of their policies).

From the beginning of the nation, prerogative power has settled significant disputes. George Washington unilaterally declared neutrality in the British-French conflict of the early 1790s, although nothing in the Constitution explicitly gave him the power to do so. Thomas Jefferson purchased the Louisiana Territory from France in 1803, although nothing in the Constitution specified a power of the national government to acquire territory. Andrew Jackson asserted the power to remove members of his cabinet, instituting presidential supremacy within the executive departments, although the Constitution is silent on a removal power. Abraham Lincoln exerted so much power his presidency was later referred to by Cornell political scientist Clinton Rossiter as a "constitutional dictatorship": constitutional in the sense that midterm elections and presidential elections were held in the midst of a civil war; and a dictatorship in the sense that the Lincoln sometimes went beyond the bounds of the laws and the written Constitution at that time of national crisis. Franklin Roosevelt also relied on prerogative powers before the United States entered World War II. He concluded an executive agreement with Great Britain to exchange overaged destroyers for naval bases, a maneuver that significantly helped the British convoys plying the North Atlantic with war material. The executive agreement, unlike a treaty, did not require the approval of two-thirds of the Senate, which is why Roosevelt used this form of international agreement on his own prerogative.

When a president uses prerogative power and succeeds, there is a "frontlash" effect: his party and the American people unite behind him; the opposition often splits and it loses confidence; the initiative is often ratified and legitimized by subsequent legislative or judicial actions. In contrast, a president whose actions are checked by the courts -- as were President Truman's seizure of the steel mills during the Korean War, and President Nixon's impounding of funds for domestic programs -- faces a "backlash" effect, in which Congress is likely to pass legislation making it more difficult for a president to use prerogative power. Thus Nixon's setbacks in the courts were followed by passage of a law that required congressional approval in order for a president to defer or rescind appropriations passed by Congress. The prosecution of the war in Vietnam by presidents Lyndon Johnson and Nixon resulted in a backlash against presidential war powers, and the passage of the War Powers Act of 1973, in which Congress gave itself the power under certain circumstances to require a president to withdraw forces from hostilities. Federal courts, however, have declined to issue orders requiring presidents to withdraw forces from hostilities, although there have been several lawsuits brought against presidents Reagan, Bush and Clinton by members of Congress. The courts have ruled instead that until Congress as a whole brings a suit, the cases brought by individual members must be dismissed.

So, how does this relate to our current president, whose conception of presidential power is apparently gleaned from his experience as the head of a family-owned business where there is no power to check or limit his power? Every event seems to be approached as a crisis by the president. For example, his executive order on immigrants and refugees was rushed into place without consultation with affected agencies and congressional leaders. His defense to the challenge by the State of Washington was that there were no limits on the president in terms of national security, claiming both the legitimacy of acting and the authority of his actions.

The question is: Is he going to treat every policy dispute as a crisis, whether domestic or foreign policy and claim prerogative power? And, if he does, is he going to experience “frontlash” or “backlash?” If his handling of the immigration and refugee dispute is an indication, the nation is in for a bumpy ride. So far, in this policy area, the courts have denied his claim, the public is not supportive, but Congress does not have the will to curb his power. How many more bungled policy moves are necessary before Congress realizes the effects of his actions? I hope that it’s soon.