42513-lcb_24-3 Sheet No. 172 Side A 08/03/2020 09:57:48 1072 1074 1075 1082 1076 ...1068 ...... in 2020 with a speciali- a with 2020 in ...... .. * ...... 1083 Law class. The author wishes to thank Prof...... 1080 by e began as a Capstone paper written for Professor ...... 1063 Marc Mohan the Royal Prerogative ...... 1071 ...... 1085 from Lewis & Clark Law School ...... 1077 Unitary Executive...... 1066 ...... 1077 cum laude he Royal Prerogative...... 1069 ...... 1072 ...... 1076 THE UNITARY EXECUTIVE THEORY c.Domestic Affairs Making War and Peace ...... a. Ambassadors b. Treaties a. The Royal Negative, orb. Veto Raising Armies Foreign Affairs...... 2. 1. Sovereignty, or Immunity from Suit or Prosecution ...... 2. Perfection...... 3. Perpetuity...... 1. A. Character B. Authority Marc Mohan graduated Originalists justify a “unitary executive” theory of presidential powers using the Con- stitution’s vesting of the executive power in “a President,” as opposed to a council or exigenciesmodern by underpinned is theory executive unitary the grounding, there- and fore loses coherency as an originalist theory. other multi-member setup. In spite of this justification’s popularity with originalists, a deeper understanding of prerogative and power, as the Founders understood those key concepts, reveals that the unitary executive theory cannot be justified through either the orintent original Indocument. founding our of meaning original the thethis of absence ∗ M K ORIGINALIST SIN: THE FAILURE OF ORIGINALISM TO JUSTIFY Gómez-Arostegui for his encouragement and advice. zation in Intellectual Property Law. This articl Gómez-Arostegui'sTomás of History the Common I.II.III. Introduction ...... 1064 A Brief History of the Originalist Justifications for the Unitary Executive NOTES & COMMENTS & NOTES LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 IV.V. The Evolution of t Blackstone’s Taxonomy of C Y 42513-lcb_24-3 Sheet No. 172 Side A 08/03/2020 09:57:48 A 08/03/2020 172 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 172 Side B 08/03/2020 09:57:48 M K C Y FIFTH YEAR FIFTH - e an Associate Justice of the These are interlocking are These # TO THE TWENTY THE TO , , 109th Cong. 351–52 (2006) ...... 1091 7–8 (Owen Ruffhead, ed., 1786). 1786). ed., Ruffhead, (Owen 7–8 HARTA (June 4, 2018, 5:25 AM), https:// C Nixon, President of the United States States United the of President Nixon, ! " AGNA ...... 1086 ipt available at https://www.landmarkcases. WITTER M INCLUSIVE , ...... 1087 (G.R.C. Davis trans., British Library 2014) (1215), FROM HIRD , ...... T Executive PrerogativeExecutive ...... 1089 ARTA ...... 1092 ...... 1094 ARGE C L fore the S. Comm. on the Judiciary ! tus/1003616210922147841?ref_src=twsrc%5Etfw. I. INTRODUCTION Virtue -views-on-presidential-power). AGNA EORGE THE M G TATUTES AT TATUTES S ING K HE c. Appointment and Removal d. Execution of the Laws ., T RIT RANSLATION OF .B T R C. Retroactive Ratification B. Locke and the Framers A. The Importance of Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to Television Interview by David Frost with Richard Donald Trump (@realDonaldTrump), T G “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals “As has been stated by PARDON myself.” numerous legal scholars, I have the absolute right to “Well, when the president does it that means that it is not illegal.” President Richard M. Nixon (May 19, 1977) A prevalent conception in the United States today of the scope of presidential A prevalent conception in the United States President Donald J. Trump (June 4, 2018) (1215), ¶ 39 or by the law of the land.” 2 3 4 1 NGLISH VII. Conclusion...... 1095 check from another branch of government. Supreme Court of the United States Be twitter.com/realDonaldTrump/sta (May 19, 1977) in org/united-states-v-nixon/nixons Monarch Bay, Cal. (transcr OF THE REIGN OF E https://www.bl.uk/magna-carta/articles/magna-carta-english-translation. 1064 LEWIS & CLARK LAW REVIEW [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 particular the word “unitary,” can be taken to refer to one of indicate a belief two that the president things. is the It sole repository of can the power entrusted to the executive branch by Article II of the U.S. Constitution. It can also, separately, during Alito Samuel Justice by used analogy, One power. that of extent the to refer his confirmation hearings, compares the executive power to a table—some unitary make to want simply others while bigger, table the make to want theorists executive President. the person, single a to belongs table the that clear power is that broadly referred to as the “unitary executive.” This phrase, and in concepts, since the size of the table, i.e., what is included in the phrase “executive power,” has an impact on the relative propriety of assigning that power to a single individual, without much (or sometimes anything) in the way of an institutional (statement of Senator Edward M. Kennedy). VI. Taxonomy Locke’s of the 42513-lcb_24-3 Sheet No. 172 Side B 08/03/2020 09:57:48 B 08/03/2020 172 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 173 Side A 08/03/2020 09:57:48 : , , " % WO . (Jan- . ,T (2015) . The (Wilfrid (Wilfrid RAKASH AG ARRAND P F XECUTIVE M OCKE .L.323, 329 329 .L.323, E L AX M NGLAND XECUTIVE ONST and their evolu- E OHN See E J NITARY ANGALORE .J.C U B A MITHSONIAN HE AWS OF AWS ,S See also L RIGINAL ,T . O OO , 19 U. 19 , P AIKRISHNA .1 (Yale Univ. Press, 1966) (“Mr. (“Mr. 1966) Press, Univ. (Yale .1 These debates have been most been have debates These S. Y ! OL Second Treatise of Government (2008) (discussing the historical and legal person . . . Docr. Franklin observed that it evolution and expansion of presidential pow- presidential of expansion and evolution 1787 V /history/power-and-the-presidency-from-ken- USH the gentlemen would deliver their sentiments on sentiments their deliver would gentlemen the B HRISTOPHER OMMENTARIES ON THE ON OMMENTARIES ,C resident at the founding of the Constitution). &C ONSTITUTION OF THE C Commentaries on the Laws of England HE ONVENTION OF :T and theand S executive); unitary C # ALABRESI ASHINGTON TO LACKSTONE (Peter Laslett ed., Cambridge Univ. Press 1988) (1690). W B G. C Power and the Presidency, From Kennedy to Obama to Kennedy From Presidency, the and Power EDERAL EGINNING The Originalist of Myth the Executive Unitary F ILLIAM B TEVEN 1W S OWER FROM OVERNMENT That is, they rely on an interpretation of the Constitution that looks P G $ Robert Dallek, Robert See Shane, M. Peter generally See It was not a given that the executive would consist of just one person. person. one just of consist would executive the that given a not was It See generally ECORDS OF THE In a literal sense, the Constitution’s creation of a “unitary executive” is unde- “[A]rguments for the hard version of the unitary executive are almost always Part II of this Paper traces a brief history of the unitary executive theory, while theory, executive unitary the of history brief a traces Paper this of II Part R 7 8 9 5 6 M K REATISES OF REATISES HE RESIDENTIAL MPERIAL FROM THE was a point of great importance and wished that wished and importance great of point a was it . . . .”). Wilson moved that the Executive consist of a single (dis-cussing the powers and duties of the and duties of (dis-cussing the powers frequent and urgent during times of national crisis, or when action must be taken so swiftly and decisively that the inherently more deliberative pace of legislative ac- tion might be inappropriate. While both writers’ works have been used to jus- justify those that demonstrates an Paper this lens, expansive originalist an through executive version unitary of the However, the degree to which the President may act in ways that are contrary to the to contrary are that ways in act may President the which to degree the However, Constitution the to contrary even or judiciary, the or legislature the of will expressed founding. nation’s the since debated been has itself, uary 2011), https://www.smithsonianmag.com I background of presidential power presidential of background T Prest & David Lemmings eds., Oxford Univ. Press 2016) T (1765) P 2020] 2020] other or council a not President,” “a in vested be shall power executive The niable. multi-member setup—though such an arrangement was discussed at the time. ORIGINALIST SIN 1065 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 originalist.” (2016). for either the “original intent” of the Framers or the “original meaning” of the text. the of meaning” “original the or Framers the of intent” “original the either for This necessarily involves an examination of the British century 18th the were influences such prominent acknowledged most the of Two Framers. influences on the jurist William Blackstone and the 17th century British philosopher John Locke. tifications are, at best, misguided or, at worst, willful misreadings of these formative these of misreadings willful worst, at or, misguided best, at are, tifications texts. nedy-to-obama-75335897/ (discussing the historical the (discussing nedy-to-obama-75335897/ Locke’s theory of prerogative as outlined in his Paper concludes by confirming that an originalist Constitutional interpretation in- Part III describes the ways that originalist thinking has been used to justify the uni- the justify to used been has thinking originalist that ways the describes III Part tary executive theory. Part IV examines the aspects of the royal prerogative as de- scribed in William Blackstone’s John to regard with analysis same the performs V Part Era. Founding the since tion ers through times of crisis). corporating those thinkers’ works cannot be used to justify the unitary executive theory. C Y 42513-lcb_24-3 Sheet No. 173 Side A 08/03/2020 09:57:48 A 08/03/2020 173 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 173 Side B 08/03/2020 09:57:48 M K , 73 , C Y Despite ! # ! ! (1952). 579, 580 ., Presidential Statement on Signing statements are not 343 U.S. ee, e.g !" ) https://www.theguardian.com/ ), This statement was in response was in response This statement " anything like a power to issue signing signing issue to power a like anything ! case, that a president’s authority, even ental Appropriations to Address Hurricanes The Last Word: Presidential Power and the Role of Steel Seizure ! ! haps the most controversial such statement was nza Act, 2006 (December 30, 2005) (available at .Q.248, 248 (2008). 248 .Q.248, ives.gov/news/releases/2005/12/2005121230-8.html). ives.gov/news/releases/2005/12/2005121230-8.html). TUD S !! , at 2, (Sept. 7, 2007 5:18 PM Blurring the Lines: The Continuities Between Executive Power and Prerogative and Power Executive Between Continuities The Lines: the Blurring RESIDENTIAL . 93-1305, at 3–4 (1974). O Moreover, Nixon’s approval of the Huston Plan was included in UARDIAN .N , 38 P " ! EP , G II. A BRIEF HISTORY OF THE UNITARY EXECUTIVE .15, 25–26 (2013) (“[T]here is no mention of mention no is (“[T]here (2013) 25–26 .15, EV Clement Fatovic, Clement Youngstown Sheet & Tube Co. v. Sawyer ( H.R. R Christopher S. Kelly & Brian W. Marshall, ‘I Have Impeached Myself’: Edited Transcript of David Frost’s Interview with Richard Nixon Broadcast Nixon Richard with Interview Frost’s David of Transcript Edited Myself’: Impeached Have ‘I Id. Id. The boldest and simplest formulation of the unitary executive idea was uttered was idea executive unitary the of formulation simplest and boldest The There’s nothing specific that the constitution contemplates. I haven’t read every word, every jot and every tittle, but I do know that it has been argued have does president a wartime, in that concerned, is president a as far as that, be otherwise would that acts make would which powers extraordinary certain unlawful, lawful if undertaken for the purpose of preserving the nation and the constitution, about. which is essential for the rights we’re all talking when situation a to refer to “wartime” using is Nixon that mentioning bears It During his presidency, increased the use of so-called signing It is worth looking beyond this iconic quotation to Nixon’s further explication explication further Nixon’s to quotation iconic this beyond looking worth is It 13 14 15 16 10 11 12 .L.R D law a clarification of how the law would be enforced. statements, by which the executive would append to legislation being signed into Signing the Dep’t of Defense, Emergency Supplem in the Gulf of Mexico, and Pandemic Influe https://georgewbush-whitehouse.arch by former President Richard Nixon, who told interviewer David Frost that “[i]f the the “[i]f that Frost David interviewer told who Nixon, Richard President former by .illegal not is it .” means . that . it, does president no formal declaration of war had been passed by Congress. And that the Supreme Court had held, in the so-called during a period when the nation was involved in an overseas armed conflict, was not limitless. the proposed articles of impeachment that were drawn up against him. 1066 LEWIS & CLARK LAW REVIEW [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 to a question about a scheme known as the Huston Plan that Nixon had approved and that would have used illegal methods to infiltrate anti-war groups and others opposed to Nixon’s policies. M Signing Statements in May 1977 all this, the idea that the president has a prerogative to act above or outside of the law has taken firm root over the ensuing decades. theguardian/2007/sep/07/greatinterviews1. of the idea when questioned regarding the potential constitutional justification for it: explicitly authorized by the Executive Clause of Article II of the Constitution, and their legality and force have been disputed. statements anywhere in the Constitution.”). Per that appended by President George W. Bush to a 2005 defense appropriations bill intended to restrict the use of so-called enhanced interrogation methods 42513-lcb_24-3 Sheet No. 173 Side B 08/03/2020 09:57:48 B 08/03/2020 173 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 174 Side A 08/03/2020 09:57:48 . , , ASH TORY !$ S HARLIE ,W , (Feb. 25, UDGMENT and Pres- and J CCOUNT OF CCOUNT Morrison v. ! A NSIDE ! I S UBVERSION OF ABLE ’ S (2008); C C HE HE :T AW AND NSIDER :T I :L DEALS IDE Y ’ I S N OL :A (Mar. 2, 1998, 12:00 AM), P ARK D EANS EWS MERICAN RESIDENCY HE M al President Would Know Not To Try It P N A OREIGN ,T RESIDENCY AND THE (June 13, 2017, 8:08 AM), ,F P THER t-a-normal-president-would-know-not-to- Obama Expands Missile Strikes Inside Pakistan Inside Strikes Missile Expands Obama O President Hides Private Rage over Starr AR ON AYER ERROR www.washingtonpost.com/news/postevery- !# ESERET Trump May Not Have the Legal Power to Fire T M W IMES /2011/02/25/obama-declares-national-state-of- es.com/2009/02/21/washington/21policy.html; es.com/2009/02/21/washington/21policy.html; , D T HE AR BY AR MPERIAL I ANE ,T ,W NTO A I ngtonpost.com/archive/politics/1998/03/01/behind- OO s-not-require-congressional-approval/2011/06/15/ Y Obama Administration: Libya Action Does Not Require Congres- rr/8c521ede-99e8-4677-8d96-b7f4fceeb6dd/; rr/8c521ede-99e8-4677-8d96-b7f4fceeb6dd/; Associated (2009); J URNED ,L.A. OHN OLDSMITH (June 15, 2011), https://www.washingtonpost.com/politics T U.S. 654, 655–58 (1988). G ETURN OF THE R OST ACK ERROR (2007); J HE T .P , J (2006). This originalist tack has become the most common way in which in way common most the become has tack originalist This Yes, Trump Can Fire Mueller. But a Norm :T " DMINISTRATION ASH Bob Woodward & Peter Baker, ! Mark Mazzetti & David E. Sanger, E. David & Mazzetti Mark A which held the Independent Counsel Act to be constitutional. Scalia Scalia constitutional. be to Act Counsel Independent the held which AR ON The Trump Administration’s actions and rhetoric concerning tariffs, ERROR ,W !% (Jan. 26, 2018, 8:06 AM), https:// W USH T EMOCRACY !! Obama Declares National Emergency Over Libya B (Feb. 20, 2009), https://www.nytim 2009), 20, (Feb. D AKEOVER at 697–99 (Scalia, J., dissenting). OST ,T See generally See Neal Katyal, See generally See generally, e.g. Morrison v. Olson, 487 Id. Starr Blasted as ‘Totally Out of Control’ AR ON AR IMES (1998), .P (Mar. 1, 1998), https://www.washi The next substantial increase in the visibility and acceptability of expansive ex- expansive of acceptability and visibility the in increase substantial next The The Supreme Court has weighed in at various points on each of these uses of During During the Clinton Administration, the Presidential removal power became a More recently, actions such as President Obama’s use of drone strikes in fur- OW THE T 21 22 17 18 19 20 W H ASH M K MERICAN OST AVAGE NSIDE THE 2011, 11:01 PM), https://foreignpolicy.com Josh Rogin, mounted a passionate defense of unfettered presidential control over the executive branch, one which relied heavily on the Justice’s trademark originalist approach to Constitution. the /obama-administration-libya-action-doe calm-air-president-hides-rage-over-sta ecutive power came following the attacks of 9/11. President George W. Bush, at the urging of Vice President (a former Nixon White House official) commanding while ways extralegal in acted Addington, David advisor Cheney’s and foreign military action, when instituting a domestic surveillance program, and by ordering the use of military commissions to try suspected enemy combatants. OF thing/wp/2018/01/26/yes-trump-can-fire-mueller-bu executive power, but the most in-depth and influential defense of the unitary exec- utive came in Justice ’s dissent from an 8-1 majority in Olson https://www.deseret.com/1998/3/2/19366614/starr-blasted-as-totally-out-of-control. P I S A 2020] 2020] hot topic, most notably during the investigation extra- an hide to by oath under lied Clinton that accusations Special with culminated that Starr Prosecutor Kenneth marital affair and his eventual impeachment. ORIGINALIST SIN 1067 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 THE N.Y. W the theory of the unitary executive is defended. Libya, in action military of initiation his Terror, on War the of therance ident Trump’s threatened use of the removal power in order to allegedly obstruct a at authority unilateral President’s the of extent the about debate kept have justice, steady boil. AGLttOWH_story.html. Press, emergency-over-libya/; Scott Wilson, sional Approval try-it/?utm_term=.d4957d040b81; David Lauter, Mueller, the Special Counsel C Y 42513-lcb_24-3 Sheet No. 174 Side A 08/03/2020 09:57:48 A 08/03/2020 174 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 174 Side B 08/03/2020 09:57:48 , M K H. C Y OHN MERICAN 125 (2009) 125 -A prerogative ONSTITUTION C OWER L NGLO ’ P royal A AT ,N This isn’t surprising, !" that the text and history of of history and text the that XECUTIVE E the pre-eminent theoretical in- theoretical pre-eminent the Second Treatise on Government Commentaries on the Laws of Eng- of Laws the on Commentaries EVELOPMENT OF D HE . 189, 189 (1984). onstitution/white-papers/on-originalism-in- :T EV Constitution’s innovative system for the sep- na-essential-washington-updates-trump-may- MERGENCY AND MERGENCY .R AW all other writers in the period after the adoption L :E CI .S AW L THEORY OL .P The Relative Influence of European Writers on Late Eighteenth- The Lockean Constitution: and the Limits of OMMON M C . 453, 454 (2008) (“Unitarians insist While originalists have used such writings, especially , 78 A UTSIDE THE UTSIDE which offers a detailed taxonomy of the EV On Originalism in Constitutional Interpretation note 9. The first American edition was published in 1771. J " ! ! ! .R ,O o-1497365324-htmlstory.html. The New Unitary Executive and Democratic Theory: The Problem of Alexander This includes examining the precepts of the English common English the of precepts the examining includes This CI supra , .S L.J. 543, 574 (2011) (“Locke was arguably !# 816 (2009). ISTORY OF THE OL ATOVIC ILL F .P ., H G C M ET AL LACKSTONE , LEMENT , 56 M , 102 A NSTITUTIONS Steven G. Calabresi, C 1B Jeremy Jeremy D. Bailey, I This Paper examines the key writings of both of these theorists and their in- The originalism that Scalia and like-minded academics employ in their analyses their in employ academics like-minded and Scalia that originalism The Justifications for the correctness of the unitary executive theory have largely 25 26 23 24 , published in 1765, ., https://constitutioncenter.org/interactive-c TR ANGBEIN EGAL III. ORIGINALIST JUSTIFICATIONS FOR THE UNITARY EXECUTIVE of the Constitution.”); David Jenkins, Prerogative utive theory. fluence on the Framers’ thoughts regarding what they called “executive preroga- Blackstone’s naturally, include, writings These tive.” land Locke’s, as justification for a strong executive, a closer analysis of those writings, and an examination of the way they were interpreted by the Framers, reveals that, exec- unitary the support not does Constitution the of reading originalist an fact, in the Constitution support their understanding of the unitary executive.”). law of the latter half of the 18th century, as well as the writers who had an acknowl- an had who writers the as well as century, 18th the of half latter the of law edged influence on the Framers. Foremost among such authors are William Black- stone and John Locke. C L https://www.latimes.com/politics/washington/la- 1068discus- separation-of-powers made have independence judicial and security, border sions less purely academic than ever. LEWIS & CLARK LAW REVIEW [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 (“[Blackstone’s] influence . . . surpassed that of L Hamilton as it was defined in the mid-18th century; and Locke’s constitutional-interpretation (last visited April 14, 2020). valid. As government and society have grown exponentially more complex, and the and complex, more exponentially grown have society and government As valid. such placing higher, exponentially become have decision-making executive of stakes power in the hands of a single individual has become much more of a risky propo- sition. uses sources contemporary to the framing era to clarify the meaning of the words Constitution. the in since other forms of constitutional interpretation, such as Living Constitutionalism, Living as such interpretation, constitutional of forms other since less even president the of person the in power executive of centralization the make fluence on American political thinkers and the U.S. aration of powers.”); Donald S. Lutz, Political Thought Century American relied on an originalist interpretation of the Constitution. not-have-the-legal-power-t 42513-lcb_24-3 Sheet No. 174 Side B 08/03/2020 09:57:48 B 08/03/2020 174 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 175 Side A 08/03/2020 09:57:48 : In .J. $ ! AN 157, 157 NGLAND E , 25 C . 554, 554 (1921). 554 554, . HOUGHT note 16, at 34. AWS OF EV .T L OL supra .L.R .P Opposition by common common by Opposition IST OLUM "! 17 H and described the most noto- ! , 21 C 21 , " % NSTITUTES OF THE ! I ng the Framers’ efforts, of course, was the was course, of efforts, Framers’ the ng blishment of the judiciary as a third co-equal third a as judiciary the of blishment 1300, 1300 (KB) (“No act can bind the King King the bind can act (“No (KB) 1300 1300, the most commonly cited thinker during the e composition of the executive. “[F]or all the for a unitary executive may have validity, but but validity, have may executive unitary a for e to his person, but that he may dispense with ed such inspirations are without historical basis. historical without are inspirations such ed "# 65 (London, E. & R. Brooke 1797). At this stage, the king still held unfettered ART OF THE "" P OURTS C F ’s account has received, it had remarkably little to say about O OURTH F HE King John’s Concept of Royal Authority, The Prerogative in the Sixteenth Century Sixteenth the in Prerogative The which which proposed the division of power between a legislature ,T # ! note 9. The Struggle of Prerogative and Common Law in the Reign of James I note 31, at 147. URISDICTION OKE J . 144, 146 (1959). C ”). supra HE CI , supra T .S IV. THE EVOLUTION OF THE ROYAL PREROGATIVE OL DWARD OCKE This is not to deny that other inspirations Ralph V. Turner, P. B. Waite, E Waite, Case of Non Obstante (1606) 77 Eng. Rep. L supporti tripod intellectual the of leg third The In the centuries after the Magna Carta first instituted restrictions on the king’s the on restrictions instituted first Carta Magna the after centuries the In non obstante .&P " To understand the conceptions of prerogative that Locke and Blackstone were Blackstone and Locke that prerogative of conceptions the understand To Even in the early 17th century, the most influential opponent of expansive " 29 30 31 32 33 34 27 28 M K CON ONCERNING French philosopher Montesquieu. While he was hisEra, Founding esta the on centered contributions branch of government, and to some extent on th attention and acclaim Montesquieu executive power[,]” and is thus outside the scope of this Paper. Fatovic, (our parliament excepted) that is in the Christian world.” Christian the in is that excepted) parliament (our rious of such courts, the Court of , as “the most honourable court power to dispense with penal laws at will. ability to ignore or countermand the legislature. describing or reacting to, it is necessary to trace the evolution of the royal preroga- tive’s boundaries and dimensions. Early notions of royal prerogative were lute. abso- each case, this Paper demonstrates how the particular variety of scribed or proposed prerogative was either adopted, de- transformed, or neutered by the Framers into a corresponding authority allotted either to the legislative or executive branch. In the case of powers allotted to the executive whether those branch, powers were the intended to Paper be restricted demonstrates by the legislature, either ex- plicitly or implicitly, preemptively or post-hoc. Ultimately, a methodical unpacking of Blackstone’s vision of prerogative power within an institutional framework, and Locke’s vision of it outside such a framework, lead to the same conclusion: In no sense did the Framers take either vision as an inspiration for an executive with the law judges to the ecclesiastical Court of High Commission eventually forced the fundamental or the common law [was] issue of whether “the king’s prerogative the law of the English constitution[.]” (1996); W.S. Holdsworth, W.S. (1996); C 2020] 2020] published in 1689, ORIGINALIST SIN 1069 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 E authority, the expansion of Parliamentary supremacy came at a glacial pace. royal prerogative, Sir Edward Coke, still considered the existence justice,” of of administration the for “necessary courts prerogative and an executive and attempted to describe the border between their powers. merely to demonstrate that the most frequentlycitmost thedemonstrate thatto merely from any prerogative which is sole and inseparabl it by a C Y 42513-lcb_24-3 Sheet No. 175 Side A 08/03/2020 09:57:48 A 08/03/2020 175 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 175 Side B 08/03/2020 09:57:48 , " M K # C Y MITH S and the HAN C OLITICS AND #" Peacham’s Case When Charles ,P AVID #! In 84–85 (London, Af- D # " ELIGION OOKS [Q]uod [Q]uod Rex non debet esse sub see also see .J.289, 291 (1982). (1982). 291 .J.289, B :R IST AWS L , 25 H IN FOURE , h). For the aftermath of the decision, see decision, the of aftermath the For h). Are Justly Called Gods (March 21, 1609), 21, (March Gods Called Justly Are Coke, sitting at King’s Bench, again , which held that “the King cannot % " Within a year, Coke, then Chief Justice ! HEREOF 45 (Brian MacArthur ed., 1996). " T . 546, 546, 570 (1936). (1616), EV R PEECHES S ISCOURSE EFORMATION OF THE 77 Eng. Rep. 1342, 1343 (KB) (“ D R , 52 L.Q. OR A ISTORIC : H The Case of Proclamations AW .”) (emphasis added). ,L note 38, at 278–81. OOK OF OOK The Origins of the Reconsidered INCH B OKE AND THE The Petition, in short, demonstrated the willingness of the upper ,1578–161687–89(2014). ,1578–161687–89(2014). F C The Case of Commendams supra , ! # The Case of Ship-Money and ENRY MITH ENGUIN $ This was, at the time, more of a normative prescription than a description of description a than prescription normative a of more time, the at was, This Case of Proclamations (1610) 77 1353–54Eng. Rep. 1352, (KB). (KB); 711 Rep. Eng. 79 (1615) Peacham Edward of Case The S Darnell’s Case (1627) 3 How. St. Tr. 1 (KB). J.A. Guy, H 825Tr. St. How. 3 (1637) Case Hampden’s (Exc Case of Prohibitions (1607) KingI, James Kings Parliament: Before Speech " P " DWARD The next significant transformation of the scope of the royal prerogative came came prerogative royal the of scope the of transformation significant next The Several years later, during the reign of Charles I, Coke objected strongly to the to strongly objected Coke I, Charles of reign the during later, years Several Despite the noted inconsistencies in his position, Coke put forth a general view view general a forth put Coke position, his in inconsistencies noted the Despite " E 37 38 39 40 41 42 43 35 36 HE .” T IR URISPRUDENCE (1615) during and after the Glorious Revolution. This was accomplished symbolically by the fact that Parliament was responsible for the ascension of William and Mary to This incident led directly to the ratification of the Petition of Right of 1628, drafted drafted 1628, of Right of Petition the of ratification the to directly led incident This by Coke, which prohibited the imposition of taxes or loans without the consent of Parliament. actual practice, and it certainly conflicted with the perspective of James I, who stated who I, James of perspective the with conflicted certainly it and practice, actual in a 1609 speech to Parliament that it was “sedition in subjects to dispute what a king may do in the height of his power.” fignes of John More 1636). defied his monarch’s will, acts of judicial independence that resulted in his removal will, acts of judicial independence that defied his monarch’s from King’s Bench and the Privy Council. knights five by brought corpus habeas of writ a allow to not decision Bench’s King’s who had been imprisoned for refusing to make mandatory loans to the crown. S J 1070that “[t]he king shall be under no other man’s authority but that law of God LEWIS & CLARK LAW REVIEW [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 of the Court of Common Pleas, committed just such ostensible sedition by ruling against the Crown in change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament” and that “the King hath no prerogative, but that which the law of the land allows him.” D.L. Keir, homine, sed sub Deo et lege homine, sed sub Deo for it groweth wholly from the reason of the Common Law . . . .” house of the legislature, heretofore supportive of royal prerogatives, to join with the with join to prerogatives, royal of supportive heretofore legislature, the of house lower house in placing limits on the king’s powers. In this light, Sir Henry Finch wrote that the king “hath a prerogative in allwrong: any of doing the to stretchethnot prerogative King’s things “the that and subject” that are not injurious to the I attempted to get around the Petition by, in essence,in emergency by, national Petition a the declaring around get to attempted I in order to levy taxes for the purpose of building a navy, his action was upheld in the Court of the Exchequer, but the narrowness of the vote (seven to five) fatally tarnished its legitimacy and the House of Lords vacated the judgment. in 42513-lcb_24-3 Sheet No. 175 Side B 08/03/2020 09:57:48 B 08/03/2020 175 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 176 Side A 08/03/2020 09:57:48 , 119 This "% PREROGATIVE It served as both a "& ylvania Ratifying Convention (Nov. 24, thout the consent of Parliament.”); Act for to the possession of the Crown shall go out of out go shall Crown the of possession the to 801 (1993) Blackstone (“Sir says William [abso- “[t]his hard-won legacy of subjecting the nd Scotland, Scot.-Eng., March 6, 1706–1707, 6 nd and Scotland, shall upon the First Day of May of Day First the upon shall Scotland, and nd ! One of the key questions regarding it (and ! w” even though “Blackstone was behind the times egal.”); Act of Settlement 1701, 12 & 13 Will. 3 c. 2 c. 3 Will. 13 & 12 1701, Settlement of Act egal.”); Commons’ political dominance of the Crown.”). Nonetheless, his conception of royal prerogative "# "$ . ONSTITUTION Article II Vests the Executive Power, Not the Royal Prerogative C note 9, at 155. It was at this point that the royal prerogative began to re- note 46, at 1220 (“Blackstone’s Commentaries . . . defined the main- !! note 25, at 124. supra , Commentaries supra supra EBATE ON THE , D . 1169, 1200 (2019). are meant as descriptive as opposed to prescriptive. If they are seen as seen are they If prescriptive. to opposed as descriptive as meant are EV HE James Wilson, Opening Address to Penns LACKSTONE ATOVIC 1T V. BLACKSTONE’S TAXONOMY OF THE See Julian Davis Mortenson, F B Mortenson, English , 1 W. & M. 2 c. 2 (Eng.) (“suspending of laws . . . by regal .L.R in “Perhaps no other work contributed as significantly to the ascendancy of [the The seventh chapter of the first volume of William Blackstone’s four-volume 45 46 47 48 49 44 M K OLUM next ensuing the Date hereof, and forever after, be United into One Kingdom, by the Name of Great Britain.”). stream American understanding of English la in his presumably willful silence about the §3 (Eng.) (“[N]o person who shall hereafter come come hereafter shall who person (“[N]o ill is parliament, of consent without authority, (Eng.) §3 the Dominions of England Scotland and Ireland wi the Union of the Two Kingdoms of England a of the ordinary course of the common law, in right of his regal dignity.” work is titled “Of the King’s Prerogative,” and in it Blackstone provides a granular portrait of the prerogative’s contours. Blackstone defines prerogative as “that spe- cial pre-eminence, which the king hath, over and above all other persons, and out tionary tradition of liberty . . . .” of the environment in which the Framers were operating when they contemplated the scope of executive authority in the U.S. Constitution. Ann. c. 11 §11 c. Ann. Engla of Kingdoms Two (“[T]he 1 lute power] lute resides power] in of the the . omnipotence British . . Parliament .”). semble the truncated thing that was described by Blackstone and that inspired the Framers of the American Constitution; 2020] 2020] the throne, and statutorily through legislative action including the English Bill Parlia- put of respectively which Union, of Acts the and Settlement, of Act the Rights, entirely an of creation the even and succession, royal lawmaking, of charge in ment new sovereign entity. ORIGINALIST SIN 1071 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 can, at first blush, seem quite expansive. quite seem blush, first at can, the which to degree the distinguishing is project) institutionalist entire Blackstone’s Commentaries prescriptive, Blackstone becomes almost absurdly conservative for his time; if de- scriptive, one can sense him hedging his bets and perhaps stubborn monarchists’ acceptance of Parliamentary supremacy. attempting to soothe doctrine of parliamentary supremacy] in the second half of the eighteenth century” supremacy] in the second half of doctrine of parliamentary than Blackstone’s exhaustive description of the various forms of the royal prerogative as it existed in have we statement explicit most the is century mid-18th the of law common English Crown to the rule of law was key to the Founders’ self-image as heirs to a revolu- 1787), C C Y 42513-lcb_24-3 Sheet No. 176 Side A 08/03/2020 09:57:48 A 08/03/2020 176 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 176 Side B 08/03/2020 09:57:48 . M K EV C Y and The ' " " " .U.L.R 384 (Andrew M Within each, each, Within "! . ENN , 59 A P 269 (Travers Twiss ed., ILLIAM authority W NGLAND Even a hundred years before 176 (D.E.C. Yale ed., London, Sel- E # " ING RITINGS OF K dential powers with Blackstone’s taxonomy Blackstone’s with powers dential W The Limits of Executive Power USTOMS OF .69() (George W. Carey & & Carey W. (George Hamilton) .69(Alexander C O on was that only one of the powers given to the N e King—that he could receive foreign ambassadors OLITICAL P In what Blackstone calls “cases of ordinary op- , and those related to royal to related those and , HE ! AWS AND " T L in England’s Great Interest in the Choice of this New Parliament:DedicatedNew this of Choice the in InterestGreat England’s EDERALIST , , REROGATIVES OF THE HE F P character ,T ENN HE ;Robert J. Reinstein, Reinstein, J. ;Robert note 9, at 156. note 9, at 158. HE P T ,T supra supra , , RACTON ALE "" ILLIAM B H W see also see at 156–57. at 157. ; ATTHEW ENRY DE As far as removal from power, the example of James I is used to illustrate LACKSTONE LACKSTONE ( B Id. Id. H M B Id. Most explicitly, Hamilton compared the presi the compared Hamilton explicitly, Most

" ! Since the king is “inferior to no man upon earth, dependent on no man, ac- 1. Sovereignty, or Immunity from Suit or Prosecution In the case of civil claims against the crown, subjects could petition the Court Blackstone defines character-based prerogatives as those meant to emphasize Blackstone Blackstone begins by dividing his discussion of prerogative into two parts: " 51 52 53 54 55 56 57 50 countable to no man,” it follows “that no suit or action can be brought against the him.” over jurisdiction have can court no because matters, civil in even king, limitations on this immunity, in a practical sense, were several. As far back as the 13th century, it was said that “the king has a superior, for instance, God. Likewise the Law, through which he has been made king.” London, Longman & Co. 1878) (c. 1200). he identifies specific subcategories. A. Character pression,” involving misuse of royal power, those “evil counsellors” and “wicked ministers” whose connivance is necessary to effect the oppression can be “exam- ined and punished” for “assist[ing] the crown in contradiction to the laws of the land.” President was the same as those held by th and public ministers.”). 259, 268 (2009) (“The result of this comparis of the royal prerogative in James McClellan eds., 2001) 1072 framework and a negative example as , Alexander Hamilton, LEWIS & CLARK LAW REVIEW [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 of Chancery, and the Lord Chancellor “will administer right as a matter of grace, though not upon compulsion.” to All Her Free-Holders and Electors den Society 1976) (1736). by his own laws.” Blackstone, Sir Matthew Hale wrote that “[i]t is regularly true that the king is bound is king the that true regularly is “[i]t that wrote Hale Matthew Sir Blackstone, the king’s dignity, such that “the mass of mankind” will recognize his “great and transcendent nature” and “pay him that awful respect” necessary to enable him to rule. Thomas Jefferson debated the appropriate scope of presidential power in the new nation. This Paper examines each variety of prerogative as Blackstone described it, as the Framers interpreted and modified it, and, when relevant, how it is conven- tionally viewed today. king’s the regarding those 42513-lcb_24-3 Sheet No. 176 Side B 08/03/2020 09:57:48 B 08/03/2020 176 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 177 Side A 08/03/2020 09:57:48 Both # ! be liable be Still, the issue * " . . [to] bring to Jus- p v. Vance, No. 19- No. Vance, v. p afterwards esident.html#docu- ent to print just after the this Parliament is . . is Parliament this ph D. Moss, Off. of Legal Counsel, to G. Dixon, Jr., Off. of Legal Counsel, to President.html#document/p65); Mem- of State, that . . . give the King Wrong al Prosecutor, to Leon Jaworski, Special sity of Illinois College of Law, to Kenneth ecutive immunities. Trum immunities. ecutive LLP, No. 19-715, slip op. (U.S. July 9, 2020). 9, July (U.S. op. slip 19-715, No. LLP, 1973) (available at https://www.documen at (available 1973) e at https://www.documentcloud.org/docu- (available at https://www.justice.gov/sites/de- OIA-Starr-memo-presidential.pdf). -About-Whether-a-Sitting-Pr establishing that, as a matter of Justice De- Ministers ! ! . . note 50, at 356. U.S. 683, 685 (1974). This Paper w Corrupt . supra Legal-Memos Affections from his People.”).

.69, ! note 9, at 159. ! O , and N and that a president is not immune to civil suit while in office, in while suit civil to immune not is president a that and " ! supra , EDERALIST ) F " Evil Counsellors LACKSTONE HE and then reaffirmed in 2000, Memorandum from Assistant Att’y Gen. Randol Memorandum from Carl B. Feldbaum, Speci United States v. Nixon, 418 Clinton v. Jones, 520 U.S. 681, 719 (1997) (Breyer, J., concurring). B T Memorandum from Assistant Att’y Gen. Robert ' ! Supreme Court decisions have indicated that a sitting president may be re- The Constitution’s provision for the impeachment of the president by the 62 63 64 58 59 60 61 M K Measures . . . and Alienate his tice, those fault/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf). to prosecution and punishment in the ordinary course of the law.” Att’y Gen. Janet Reno 222 (Oct. 16, 2000) Supreme Court’s most recent decisions involvingdecisions recent most Court’s Supreme ex 635, slip op. (U.S. July 9, 2020); Trump v. Mazars, cloud.org/documents/3896903- quired to produce documents or other evidence as ordered by a subpoena if only the claim made in opposition was a “generalized interest in confidentiality” (i.e., privilege), executive R. Murphy ed., Liberty Fund 2001) (1679) (“The of Work 2020] 2020] the precept that the throne can be vacated only when three conditions are met: “If therefore any future prince should endeavour to subvert the constitution by break- ing the original contract between king and people, should violate the fundamental laws, and should withdraw himself out of the kingdom,” it would amount abdication. to an ORIGINALIST SIN 1073 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 has never been definitively tested or resolved. Current thinking on the topic is dom- is topic the on thinking Current resolved. or tested definitively been never has inated by an opinion written by the White House’s 1973, in of these decisions were unanimous, but the Court has never been asked to rule on Article II does: if impeached and convicted, the president “would president the convicted, and impeached if does: II Article House of Representatives and removal from office by clearly affords conviction a greater in ability to deal the with the Senate situation of an executive who acts does option impeachment the of presence The order. constitutional the to contrary seem to preserve, however, the president’s immunity from clearereven it makes 69 No. in Hamilton criminal Alexander office. in while prosecution than Prosecutor 730 ments/3896903-Legal-Memos-About-Whether-a-Sitting- (Feb. 12, 1974) (availabl assuming the suit concerns events that occurred prior to her term of office. Att’y Gen. Elliot Richardson 3 (Sept. 24, ment/p1). partment policy, a sitting president cannot be indicted on criminal charges. How- ever, memos arguing the alternative were produced both during the Watergate in- vestigation and the investigation by Special Prosecutor Clinton Administration. Kenneth Starr into the orandum orandum from Professor Ronald D. Rotunda, Univer W. Starr, Independent Counsel cloud.org/documents/3899216/Savage-NYT-F 4–5 (May 13, 1998) (available at https://assets.document- C Y 42513-lcb_24-3 Sheet No. 177 Side A 08/03/2020 09:57:48 A 08/03/2020 177 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 177 Side B 08/03/2020 09:57:48 " M K ! C Y IMES doing 758, 760 ,N.Y.T It has been ( ! ROCEEDINGS OF 155–61 (London, the Act was al- P OMMONS * C ! IME it remains a broadly T ! ( OUSE OF 282–83 (2d ed. 2008). ISTORY AND H RESENT H P iness/media/trump-libel-laws.html. HE (' ISTORY H 254, 276 (1964) (“Although the Sedition Act Act the Sedition (“Although (1964) 276 254, chapters; and I had thought we had done with OURNALS OF THE J ng, moreover, is not only incapable of incapable only not is moreover, ng, MERICAN A N 705,Alien (“The concurring) J., (Douglass, (1968) 710 ESTORATION TO THE !A R IBERTY ) wrong: he can never mean to do an improper thing.” ! L Trump Renews Pledge to ‘Take a Strong Look’ at Libel Laws Libel at Look’ Strong a ‘Take to Pledge Renews Trump E onary Office 1802) (1685); 6 T (It was allowable for a House of Parliament collectively to note 9, at 160. note 9, at 159. M !! IVE note 25, at 140. thinking supra supra , , ,G 1742). OMMONS FROM THE supra , C ONER F RIC LACKSTONE LACKSTONE ATOVIC B F E New York Times Co. v. Sullivan, 376 U.S. Grynbaum, M. Michael B Membersof Parliament John Cooke, in 1685, and William Shippen, in 1717, were sent to OUSE OF Blackstone’s Blackstone’s next category of prerogative consists of those related to the per- Today, despite some pushback from President Trump, There is American There the within perfection executive’s the of conception such no 2. Perfection H 67 68 69 70 71 65 66 merely for writing an essay critical of the Adams Administration, 1798 did result in the imprisonment, for four months, of a Vermont congressman arrest . . . for any speech or debate in either House.”). While the Sedition Act of fection of the monarch’s person. “The ki “The person. monarch’s the of fection wrong, but even of them forever.”). was never tested in this Court, the attack upon its U.S. 394 States, validity United v. Watts history.”); has carried the day in the court of and Sedition Laws constituted one of our sorriest lowed to lapse later that year. There is overwhelming consensus that, if it had ever been tested in the courts, such a law would easily have been found to violate the First Amendment’s Freedom of Speech guarantee. Richard Chandler putation by a member of Parliament that the king might be in error personally could personally error in be might king the that Parliament of member a by putation lead to imprisonment. The only way to undo any proclamations or grants made by the king was to assert that the king was mistaken or deceived into taking the regrettable action. Any im- argued that Blackstone saw the perfection of the king as a bulwark against abuses of his power, since “[i]t is simply inconceivable that someone who already has eve- rything could desire more.” (Jan. 10, 2018), https://www.nytimes.com/2018/01/10/bus (London, His Majesty’s Stati 1074whetheroffice. in while prosecution criminal a in indicted be can president sitting a Still, the existence of a removal mechanism and the susceptibility of the president consid- is prerogative particular this that indicate control judicial of aspects some to erably narrower than it was at English common law in the Founding Era. LEWIS & CLARK LAW REVIEW [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 Constitutional system. The idea that a member of the legislature could be impris- oned merely for criticizing the president was implicitly disavowed by Article I, Sec- (“The1 Clause 6, tion from privileged be . . . shall . . . Representatives and Senators THE the Tower of London for criticizing royalty. 9 apresidential declaration or order does not require indulging in the legal fiction that that fiction legal the in indulging require not does order or declaration accepted truism that the president is absolutely open to criticism from members of Congress, other American citizens, and even non-citizens. The process of undoing apresidential criticize the king’s actions or words under the useful legal fiction that those actions derived not from the royal personage but from his Administration.) 42513-lcb_24-3 Sheet No. 177 Side B 08/03/2020 09:57:48 B 08/03/2020 177 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 178 Side A 08/03/2020 09:57:48 RITAIN B ISTORIE OF H HE ,T ORGING OF ORGING F That is to say, while ACON (( B .” AND THE AND I RANCIS perpetuity DWARD :E Similarly, no corruption of blood ap- ! ( ING K ainst him the previous year became null and void, and null became year previous the him ainst issues related to a president’s legal minority legal president’s a to related issues 13 (London, W. Stansby 1622). ! ( ERRIBLE T EVENTH S HE note 42, at 82. This prerogative meant that when Henry VII be- T note 9, at 160. note 9, at 161. note 9, at 161. REAT AND REAT supra

Also, the king can never be a legal minor; despite minor; legal tradition a the be never can king the Also, # , ENRY " ( ( H supra supra supra ,AG , , , INCH . art. I, § 9, cl. 3. ING F K ORRIS M ONST see also art. II, § 1, cl. 5. ; ARC LACKSTONE LACKSTONE LACKSTONE B Id. B U.S. C Id. B M there is no scenario in which an ostensible executive would be barred from AIGNE OF AIGNE “A third attribute of the king’s majesty is his None of these three prerogatives are applicable to the American system. Be- 3. Perpetuity This custom has its origin in the natural desire for continuity in executive au- This idea of royal “perfection” also implies the inapplicability of laches to ac- () " R 72 73 74 75 76 77 78 ( M K HE cause legal actions taken by the government are not seen as being taken by the per- the by taken being as seen not are government the by taken actions legal cause presidency the Because issue. limitations of statute no is there executive, the of son is not an inheritable position, and because the Constitution forbids Bills of Attain- der, will not occur. the office by such. And because the Constitution stipulates a minimum age of 35 presidency, the of office the for years plies to the monarch: any heir who is convicted of treason or felony has can- the person stain king’s the definition by because throne, the of assumption upon purged corrupted. so be not 104 (2009). T 2020] 2020] say to safe It’s advisors. incompetent or corrupt by misled merely was president the longer much live not did Framing, the survived barely it if even prerogative, this that before being consigned to the dustbin of history. ORIGINALIST SIN 1075 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 no interregnum, since the heir immediately becomes the new ruler upon the death of the previous one. Hence the age-old adage: “The king is dead! Long live the individual monarchs may die, the monarchy, in the abstract, is immortal. There is came king in 1485, the act of attainder passed ag passed attainder of act the 1485, in king came and it was unnecessary for Parliament to formally annul it. F thority, and it has continued to be relevant to the present day. While the idea that the presidency exists as some Platonic eternal form regardless of Framers its the current that occu- true still is it democracy, constitutional with comport not does pant understandably dictated a mechanism for succession in the case of a president’s thority of the crown. of appointing regents for monarchs, an underage monarch possesses the full au- tions taken by or on behalf of the crown. The king can ignore statutes of limitation of statutes ignore can king The crown. the of behalf on or by taken tions the that intends law “the because actions of bringing the in subjects his bind which king is always busied for the public good.” king!” which reportedly gained currency as early as the was It Crusades. the 13th in fighting away was Edward century son his while died in II Henry when England, decreed that Edward became the new king immediately, and that his accession was not contingent on his coronation or, even, on his awareness died. that his father had C Y 42513-lcb_24-3 Sheet No. 178 Side A 08/03/2020 09:57:48 A 08/03/2020 178 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 178 Side B 08/03/2020 09:57:48 M K C Y The " ) This demonstrates ! ) " ) ; declaring, that thus far the prerog- the far thus that declaring, ; Twenty-Fifth Twenty-Fifth Amendment created an )' Blackstone lays down what today we would call a ! ) Blackstone is here explicitly relying on a Lockean con- ! ) In all such cases, a successor does not need to have taken note 9, at 162. note 9, at 163. (* The former include the sending and receiving of ambassadors, of receiving and sending the include former The Section VI. supra supra # , , ) note 32, at 152. . amend. XXV, § 1. § XXV, . amend. supra ONST , see also infra at 163. ; OKE LACKSTONE LACKSTONE U.S. C Id. B Id. Id. B Id. C The second major category of prerogative powers outlined by Blackstone are 1. Foreign Affairs In this area, “the king is the delegate or representative of his people.” These authority-based prerogatives come in two familiar flavors: those which 79 80 81 82 83 84 85 86 quence, laid down some exception or boundary or exception some down laid quence, ative shall go and no farther.” public good, where the positive laws are silent . . . .” basic thrust of the royal prerogative in this sense is that “the king is and ought to be to ought and is king “the that is sense this in prerogative royal the of thrust basic absolute . . . unless where the constitution hath expressly, or by evident conse- inquiry into the validity of the unitary executive theory as it is expressed today. The today. expressed is it as theory executive unitary the of validity the into inquiry those relating to the king’s authority, and it is these which are most relevant to an B. Authority fairly squishy standard: the monarch has absolute authority, except where the con- stitution has expressly or impliedly limited it. On the face of it, this does not seem too far removed from the idea that Article II grants unfettered “executive power” Article Congress’ in outlined those being exceptions only the with president, the to I enumerated powers. But Blackstone goes further, suggesting that Parliament has the ability and even the duty to stand up to a king who is abusing his prerogative powers: “[I]f the consequence of that exertion [of a prerogative] be manifestly to a to advisers his call will parliament the kingdom, the of dishonour or grievance the just and severe account.” the Oath of Office (although it is customary to do so as soon as possible) in order to possess full executive authority. ception of prerogative as “consisting . . . in the discretionary power of acting for the for acting of power discretionary the “consisting . . . in as prerogative of ception out the king’s assent, against a foreign king who was allied with the king of England, of king the with allied was who king foreign a against assent, king’s the out it would not be a violation of the alliance between the kings. extent of this unifiedthis of extent “Institutes Coke’s from hypothetical a in reflected is authority with- war, made England of king the of subjects the all If England”: of Laws the of the making of treaties, and the power to declare war and peace. The latter include the royal negative, or veto power, the power to appoint and remove ministers, and the power and duty of executing the laws. 1076 death while in office. And the passage of the LEWIS & CLARK LAW REVIEW [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 “respect either this nation’s intercourse with foreign nations, or its own domestic government . . . .” even more detailed scheme for the allotment of authority in cases of presidential disability or incapacity. 42513-lcb_24-3 Sheet No. 178 Side B 08/03/2020 09:57:48 B 08/03/2020 178 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 179 Side A 08/03/2020 09:57:48 , 37 Am- )( 807 (The Li- ! The only remedy only The * " RITINGS * s that of judging, in the in judging, of that s :W So, despite the fact that the AMILTON H )* ]rotecting foreign emissaries has a long Whether this immunity extends to )) LEXANDER # A gn Country, whether the new rulers are competent are rulers new the whether Country, gn * in , ght to receive ambassadors “include ambassadors receive to ght Pacificus No. I note 9, at 166. note 9, at 164. Taking the Prerogative Out of the Presidency: An Originalist Perspective supra supra , , .Q.85, 88 (2007). 88 .Q.85, . art. II, § 2, cl. 2. The power to receive ambassadors lies entirely with the executive TUD *' a. Ambassadors b. Treaties S ONST Boos v. Barry, 485 U.S. 312, 323 (1988) (“[P The degree to which this power of recognition is shared between the leg- LACKSTONE LACKSTONE ! See Diplomatic Privileges Act 1708, 7 Ann. c. 12 (Eng.). U.S. C Alexander Hamilton, Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015). B Jack N. Rakove, B * This power remains relatively intact in the American system, with the im- Under his powers regarding foreign affairs, the king has “the sole power of Concomitant with this power is that to make treaties and alliances with foreign with alliances and treaties make to that is power this with Concomitant 88 89 90 91 92 93 94 87 M K RESIDENTIAL of Israel on the passport of a Jerusalem-born American citizen, because the execu- tive branch had the exclusive power to recognize foreign nations. islature and the executive has remained a point of contention, most recently in a caseinclusion the mandate not could Congress that held Court Supreme the where and implicitly includes the power to recognize the legitimacy of foreign ments. govern- for the abuse of this power is that of impeachment by the Parliament of any minis- any of Parliament the by impeachment of that is power this of abuse the for ters who advised or concluded any such treaties or agreements. This was largely an academic issue, though it did occur, most notably after King George I entered into the unpopular Partition Treaty of 1715. brary of America 2001) (1793)2001) America of brary ri (The forei a in Government of Revolution a of case and ought organs to Will of be the recognised National or not . . . .”). that natural crimes are universal and punishable under any system of justice. Con- crimes against natural law such as murder or treason, or merely to positive laws, is debated, but susceptibility to prosecution for the former comports with the notion bassadors, then as now, are typically held to be immune from prosecution under the under prosecution from immune be to held typically are now, as then bassadors, laws of their host country, and susceptible only to being sent home to face own their land’s justice after committing a crime. 2020] 2020] voicethe possesses who monarch the solely is it that idea the vividly legitimate and authority of the nation. home.” at embassadors receiving and states, foreign to embassadors sending ORIGINALIST SIN 1077 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 P legislature needed to confirm the privileges and immunities that ambassadors enjoy, ambassadors that immunities and privileges the confirm to needed legislature receive and representatives own her name to monarch the of province the remains it those of other nations. portant caveat that ambassadors to foreign states must be confirmed by a majority of the Senate. history and a noble purpose.”). versely, with regard to civil suits, ambassadors were declared immune from such actions by the Diplomatic Privileges Act of 1708. powers, which, in Blackstone’s description, devolves from the monarch’s position vested. is nation the of power sovereign the whom in one the as C Y 42513-lcb_24-3 Sheet No. 179 Side A 08/03/2020 09:57:48 A 08/03/2020 179 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 179 Side B 08/03/2020 09:57:48 " M K * '' ! .L. C Y , 111 EX In the ** , 80 T note 91, at 404 (Alexander character . . . .” In other words, since a ! 540 (The Library of America ' ! supra , It is notable that the Pacificus- the that notable is It ! executive ' ! RITINGS The Executive Power Over Foreign Affairs :W RITINGS , and are accordingly treated as Exec- as treated accordingly are and , Our Supermajoritarian Constitution ecutive power” jibes with that posited by He then quotes Hamilton (writing as he president may negotiate treaties and treaties negotiate may president he :W *) .75(Alexander Hamilton)). .75(Alexander .” O ADISON than of the N This created an opening for agreements, M " in AMILTON ' , ! H in legislative British government British EDERALIST chael B. Rappaport, Treaties’ End: The Past, Present, and Future of International Lawmaking International of Future and Present, Past, The End: Treaties’ F .75, O ,” it made sense to him that the legislature should have a L.J. 1236, 1286–1305 (2008). HE in the in of the N Writing in response to Hamilton (as “Pacificus”), Madison British commentators Helvidius No. I Since treaties are “confessedly to have the force and operation and force the have to “confessedly are treaties Since ALE *( ! * more other laws , 117 Y EDERALIST F Oona A. Hathaway, Hathaway, A. Oona at 541. at 545. at 546 (quoting T HE royal prerogatives royal T Id. Saikrishna B. Prakash & Michael D. Ramsay, See Id. Id. Id. John O. McGinnis & Mi James Madison, , and are to be a rule for the courts in controversies between man and man, L.J. 231, 329 (2001). Recognizing the ability to enter into binding international agreements as an all- an as agreements international binding into enter to ability the Recognizing Another wrinkle to the treaty-making power has been the rise of so-called 97 98 99 100 101 102 103 95 96 . 703, 760 (2002). laws ALE EV inappropriate inappropriate international pacts was vital to maintaining democratic legitimacy. in the United States in the United too-easily too-easily abused power, the Framers mandated that a prospective ability to block hand in the process. “congressional-executive agreements.” In short, the language in Article I, Section agreement international of form only the not are treaties that indicates 3 Clause 10, envisioned by the Constitution. Y Proclamation of 1793, which essentially abrogated a portion of the Treaty of Alli- ance that the U.S. had agreed to with France in 1778. Helvidius Debates took place in the wake of President Washington’s Neutrality This is because an elected president without the lifetime security of royalty “might sometimes be under temptations to sacrifice his duty to his interest,” with an eye circumstance. civilian post-presidential his toward Hence Article II, Section 8’s provision that t that provision 8’s Section II, Article Hence the of approval the without valid be would neither that but ambassadors, nominate writing Madison, James two-thirds. of a requiring treaties with Senate, pseudonymously as “Helvidius” in 1793, argued that the (along power with the power to to declare war) “can never make fall within a proper treaties definition of powers.” executive R 1078 LEWIS & CLARK LAW REVIEW [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 1999) (1793). Madison’s narrow definition of Mortenson. “ex mere four years after the ratification of the Constitution, the issue of the executive’s the of issue the Constitution, the of ratification the after years four mere power to withdraw from treaties has been almost continually contested. made the distinction that “[t]he power of making treaties and the power of declaring of power the and treaties making of power “[t]he that distinction the made of as much as any same tract, Hamilton had acknowledged that “[h]owever proper or safe it may” be would “it monarch, hereditary a to treaties” making of power entire “the commit to be utterly unsafe and improper to entrust that power to an elective magistrate.” Hamilton). Publius a few short years earlier) back power to “partake[s] himself, saying that the treaty-making war, are war, utive prerogatives by 42513-lcb_24-3 Sheet No. 179 Side B 08/03/2020 09:57:48 B 08/03/2020 179 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 180 Side A 08/03/2020 09:57:48 ., July 13, AG M ! !! IME ,T After World War II, War World After a practice that allows ' !! '* ! The passage of the Recip- the of passage The

'( ! ! ' ! in the trade arena eventually was Field v. Clark 649, 681, 693–94 (1892). 693–94 681, 649, There is a fairly straight line from that decision to the cur- note 103, at 1296 n.167 (citing cases). note 103, at 1299. note 103, at 1305. ') ! These fears, oddly, seemed to be more keenly felt when the po- supra supra supra The use of congressional-executive agreements expanded signifi- # !!! ' ! at 1289–90. Id. Act McKinley of 1890, ch. 1244, § 3, 26 Stat. 567 (1890). Field v. Clark, 143 U.S. Hathaway, Reciprocal Tariff Act, 19 U.S.C. § 1351 (2000). , 19 U.S.C. §§ 2191–94 (2000). Hathaway, THE : A Cure Worse than the Disease? Hathaway, The Constitutionality of the Act was challenged, on the grounds that it del- " ' This only encouraged the increasingly common formation of international Despite the pendulum swing away from strict observance of the Treaty the of observance strict from away swing pendulum the Despite The precedent established by ! 104 105 106 107 108 109 110 111 112 M K shall have the power and it shall be his duty to suspend” the tariffs instituted by the by instituted tariffs the suspend” to duty his be shall it and power the have shall Act. and towards the prevalence of congressional-executive agreements, Congress’ and frequent delegation despite of the nuts-and-bolts negotiation of agreements to international the executive branch, there has never been a In president. the sustained of hands the in movement power treaty the of entirety the depositing towards tential domestic impact was the invalidation of racial segregation, as opposed to the to opposed as segregation, racial of invalidation the was impact domestic tential economic impact of trade agreements such as GATT and NAFTA. laws, it could confer discretion as to their execution. egated to the president “both legislative and treaty-making power,” but the Supreme Supreme the but power,” treaty-making and legislative “both president the to egated make to power the delegate not could Congress while that holding it, upheld Court rent, “fast-track” trade authority put in place in the 1970s, 1953, at 20. trade agreements that were perceived and referred to as treaties, but which did not Senate. the from approval of stamp two-thirds the get rocal Trade Agreements Act in 1934 essentially codified this approach, delegating to the executive the ability to enact trade policy houses with of Congress. a simple majority in both a president to institute tariffs on a vast range of products (steel, for example) from authoriza- Congressional any without example) for (China, countries of array vast a tion or input. 2020] 2020] approved by a majority of both houses of Congress and signed by the president, that operate in a very similar vein to treaties. Initially, such agreements came into nego- to branch executive the to authorization prior gave Congress when existence tiate things like international postal service or commercial relations with Pacific is- land nations. ORIGINALIST SIN 1079 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 the failure of the Senate to ratify the Treaty of Versailles after World War I, disen- grew. rule supermajority Clause’s Treaty the with chantment used to justify end-runs around the Treaties Clause in other contexts. Prompted by Prompted contexts. other in Clause Treaties the around end-runs justify to used fears were stoked that treaties could be used as an instrument of domestic social control, subjecting American citizens to international justice, especially in the civil rights context. cantly in the decades following the Civil War, culminating in the McKinley Tariff he . . . satisfied be shall President the as often “so that declared which 1890, of Act C Y 42513-lcb_24-3 Sheet No. 180 Side A 08/03/2020 09:57:48 A 08/03/2020 180 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 180 Side B 08/03/2020 09:57:48 : M K C Y ! ADISON !! M in Madison’s re- ( !! UTHORITY AND THE A treaty, the Comprehensive Nuclear EGISLATIVE :L all ratified through the Article II process rather rather process II Article the through ratified all ONSTITUTION C In other words, private citizens may commit acts commit may citizens private words, other In Even the staunchest proponents of the unitary note 91, at 808. note 96, at 540. # S " ’ !! !! supra supra , , !!" note 9, at 166. ONGRESS 32 (2017) (noting that the SALT II ,C supra , Pacificus No. I Pacificus No. Helvidius No. I OWERS HAFETZ note 96, at 534–36. P c. Making War and Peace C supra LACKSTONE , The extent to which Congress may delegate decisions about the initiation OSH J B Id. Letter from James Madison to Thomas Jefferson (June Hamilton, 13, 1793), Madison, ) Notably, the Framers of the Constitution chose not to place decisions regard- “[t]he right to decide the question whether the duty & interest of require the war U.S. or peace under any given circumstances, and whether their dis- exclusively & essentially be to seems other the or one the towards be position involved in the right vested in the Legislature, of declaring war in peace; and in the [president] & [Senate] of making peace in time of war.” time of The most impactful and extreme aspect of the royal prerogative’s foreign af- !! 113 114 115 116 117 118 RITINGS EPARATION OF Test Ban Treaty, and the New START treaty were treaty START New the and Treaty, Ban Test than by majority vote of both houses). sponse was that the power to declare war “can never fall within a proper definition sponse was that the power to declare war of executive powers,” since it does not involve the execution of previously existing laws. ing declarations of war and peace in the hands of the executive. (Just as notably, it I,Article there.) up ended largely purposes practical all for has 11 Clause 8, Section W S 1080 addition, certain types of pacts have, at the insistence of the Senate, remained sub- ject to the Article II process, including arms control agreements, military alliances, and human rights agreements. LEWIS & CLARK LAW REVIEW [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 of violence against another state, but such violence, without the prior imprimatur check same “the that allows Blackstone warfare. constitute cannot monarch, the of po- the on check only the is ministers king’s the of impeachment” parliamentary of tential abuse of this power. executive would not argue that the president has the authority to act in the absence absence the in act to authority the has president the that argue not would executive of legislative action, or in opposition to it, when crafting treaties, joining interna- The same events which prompted that letter also spurred the Pacificus-Helvidius debates, in which Hamilton expounded an expanded notion of presidential power. declare to Legislature the of power “the that noted Pacificus, as writing he, even But war [is an] exception out of the general ‘Executive Power’ . . . .” that gives Congress the power to republic’s the declare since war, Almost peace. and make to the authority shared treaty-making the power Senate and gives president the birth, though, there has been significant pushback to this conception. A mere four years after the Constitution’s ratification, its primary author felt the need to clarify tional organizations, or negotiating economic relationships with foreign powers. Blackstone’s in power, This peace. and war make to power the was component fairs sist[s] in every individual, is given up by all persons that enter into society, and is power.” sovereign the in vested telling, derives from the fact that “the right of making war, which by nature sub- 42513-lcb_24-3 Sheet No. 180 Side B 08/03/2020 09:57:48 B 08/03/2020 180 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 181 Side A 08/03/2020 09:57:48 . ( ! O ! N VALON .: A And even CH !" EDERALIST ! (Mar. 25, 2015), note 91, at 149. L. S F HE ALE supra T , ,Y Today, of course, such EDERALIST L. 356, 362 (1920). ! ! L ,F ’ ! RITINGS

NT !# :W ! but America’s military involve- .J.I note 50, at 208; * M !! Res. 23, 107th Cong. § 2 (2001) (broadly AMILTON supra , 14 A H in e-to-bring-back-letters-of-marque/. , ugs,” or a “War on Childhood Obesity.” note 50, at 357. Plan of Government The Declaration of Paris The Declaration .41(James Madison), .41(James O The years following the 9/11 attacks and their attendant Is It Time to Bring Back Letters of Marque? N supra ' ! note 113, at 37. ! ) ! Hamilton and Madison talked about it. ! . art. I, § 8, cl. 11. supra " , ! ! EDERALIST ONST F Authorization for Use of Military Force,Military of Use for Authorization S.J. The Plan of Government that Hamilton submitted to the Constitutional HAFETZ HE ! (2008), https://avalon.law.yale.edu/18th_century/ratny.asp. !! See Ratification of the Constitution by the State of New York; July 26, 1788 Alexander Hamilton, C U.S. C T Charles H. Stockton, Georgi Boorman, We use “war” here to refer to military conflicts with other nations, not the rhetorical War Powers Resolution of 1973, 50 U.S.C. §§ 1541–48 (1976). ! ! ! Like the power to declare war, the power to issue letters of marque and reprisal and marque of letters issue to power the war, declare to power the Like The same might seem to be true of the royal prerogative to issue letters of safe of letters issue to prerogative royal the of true be to seem might same The Congress has not declared war since 1941, Never was the idea that the president was personally and unilaterally able to 121 122 123 124 125 126 127 128 119 120 M K ROJECT Convention, one that included life terms (subject to good behavior) for senators and presidents, gave the Senate the “sole power of declaring war.” delegating war powers to the executive). device of a “War on Crime,” a “War on Dr was also shifted from being a royal prerogative to falling under the sole purview of the legislature. While there has been some fringe discussion about utilizing letters of marque combat to 21st century piracy and , such methods are most likely historical interest. of only https://thefederalist.com/2015/03/25/is-it-tim letters are obsolete. The United States did not issue one after 1815, and they were priva- banned which Law, Maritime Respecting Declaration Paris the by eliminated respect. to vowed has signatory, a not while States, United the which and teering ment around the globe has been essentially constant over the last several decades. the restrict to sought War, Vietnam the of wake the in passed Act, Powers War The force military of use the for authorization Congressional on rely to ability executive’s that was passed in response to a specific event in order to justify an unending de- ployment of troops. P 69 (Alexander Hamilton), 2020] 2020] of military action to the executive branch has been a source of constant tension in American government ever since. ORIGINALIST SIN 1081 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 Authorization for Use of Military Force have demonstrated the Act’s toothlessness Act’s the demonstrated have Force Military of Use for Authorization in the face of a Congress that does not dare to stand up for its institutional prerog- atives. initiate military action even considered during the debates over the Constitution. When submitting its ratification of the Constitution, the New York State Conven- declaration a for supermajority two-thirds a requiring amendment an proposed tion of war. today, in an environment of expansive executive authority, Congress still reserves the right to forestall a president’s desires regarding foreign military matters. Most recently, President Obama’s strategies with regard to the Syrian civil war and the closing of the Guantanamo Bay prison were stymied. C Y 42513-lcb_24-3 Sheet No. 181 Side A 08/03/2020 09:57:48 A 08/03/2020 181 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 181 Side B 08/03/2020 09:57:48 M K C Y deference to "#& 15 Hen. 6 c. 3 (Eng.); For the The procedure of issuing issuing of procedure The "#$ which eventually came to be seen seen be to came eventually which Congress, then, not the executive, is "## However, it remains undisputed that "#% "#' . it, by land or water, for purposes of trade, free 5, ch. 8, § 2(a), 42 Stat. 5 (1921). Enemies 1439, 18 Hen. 6 c. 8 (Eng.); Evils Arising Evils (Eng.); 8 c. 6 Hen. 18 1439, Enemies 1201, 1254–55, 1259, 1322, 1351 (Supp. I 1965). ! "# Trump v. Hawaii note 1, ¶ 41 (“All merchants may enter or leave England unharmed England leave or enter may merchants (“All 41 ¶ 1, note note 9, at 168. Letters of Safe Conduct 1441, 20 Hen. 6 c. 1 (Eng.). 1 c. 6 Hen. 20 1441, Conduct Safe of Letters supra , supra , "#" ffairs . art. I, § 8, cl. 4. ARTA C ONST The right of merchants to enter England for commercial purposes dur- purposes commercial for England enter to merchants of right The ! ! ! AGNA LACKSTONE Domestic B M Abuse of Safe-conducts Under Clause of Vidimus 1436, U.S. C Emergency Quota Act, Pub. L. No. 67- 8 U.S.C. § 1182(e) (1952). 8 U.S.C. §§ 1101, 1151–57, 1181–82, v. Hawaii, Trump 138 S. Ct. 2392, 2424 (2018). While that Act was amended by the 1965 Immigration and Naturalization Act Naturalization and Immigration 1965 the by amended was Act that While There is no specific mention of letters of safe conduct in the Constitution, and Constitution, the in conduct safe of letters of mention specific no is There Many of the powers included within the royal prerogative as described by [w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental United States, he may by proclamation, and for such period as he shall deem to the interests of the necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. 2. 129 130 131 132 133 134 135 136 that Congress could, if it wished, eliminate the president’s power to make unilateral pro- unilateral make to power president’s the eliminate wished, it if could, Congress ofentry the on hibitions States. United the into individuals of classes or individuals Control over immigration policies, then, cannot be seen as part of the prerogative. executive ing peacetime is enshrined in the Magna Carta itself. the closest analogue would be Article I’s grant to Congress of the power “[t]o es- tablish an uniform Rule of Naturalization.” as discriminatory towards immigrants from non-European countries. The McCar- ran-Walter Act of 1952 made a significant concession to the executive by allowing 1082 conduct allowing citizens of enemy nations to enter the country and travel unmo- to states, all of power the in left is “it that maxim the from starts Blackstone lested. take such measures about the ient . . . .” admission of strangers, as they LEWIS & CLARK LAW REVIEW think conven- [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 should exist. The legislature exercised this authority regularly, instituting a quota 1921, of Act Quota Emergency the via system in charge of determining who can enter the country and what immigration policies and without fear, and may stay or travel within from all illegal exactions, in accordance with ancient and lawful customs.”). Blackstone have been blunted or transferred to the legislative or judicial domains. executive authority in the immigration context was Court’s recent decision in reinforced by the Supreme Further Security of the Captors of the Ships of Ships the of Captors the of Security Further From the Non-inrollment of such letters, imprinted with the king’s great seal and enrolled at Chancery, is dictated is Chancery, at enrolled and seal great king’s the with imprinted letters, such by various statutes. to forbid discrimination “in the issuance of an immigrant visa because of [the per- son’s] race, sex, nationality, place of birth, or place of residence,” 42513-lcb_24-3 Sheet No. 181 Side B 08/03/2020 09:57:48 B 08/03/2020 181 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 182 Side A 08/03/2020 09:57:48 In Fed- In * # " In addition, “the ) " " note 91, at 351 (Alexander note 91, at 367 (Alexander http://news.bbc.co.uk/2/hi/ supra supra , , negative” was acknowledged as a RITINGS RITINGS The royal negative, as it was known, a misnomer. What actually occurred was the ) jection, more in the nature of a “pocket veto” # :W :W The fact that Blackstone even includes it " % By 1788, however, Hamilton had softened # or qualified " " note 123, at 150. # " Hamilton’s original “Plan of Government” did #" AMILTON AMILTON " note 9, at 154. H H ## supra " (Oct. 14, 2002, 4:01 PM), , in in supra ( , " And in Federalist No. 73, he argues that the qualified, EWS " .66, .69, ( In addition to that limitation, the king could also be bound be thatalso to could addition king In the limitation, O O note 9, at 169. # " ( N N " " note 25, at 134. supra note 94, at 91. , ,BBCN LACKSTONE Plan of Government supra , supra It was last used in 1707. a. Royal Negative, or Veto The EDERALIST EDERALIST " # F F " (citing The Magdalen College Case (1615) 86 Eng. Rep. 803 (KB)). HE HE LACKSTONE ATOVIC The term “royal negative” is something of Royal Assent F Rakove, Hamilton, T T B Id. Id. Id. The Framers recognized that giving the executive the power to veto any legis- The monarch in 18th century England “ha[d] the prerogative of rejecting such rejecting of prerogative the “ha[d] England century 18th in monarch The 141 142 143 144 145 146 147 137 138 139 140 M K give the “” (as he dubbed the chief executive) an unmodified “negative” upon “all laws about to be passed.” Blackstone seems to have seen the royal prerogative as an escape valve, a vehicle for necessary adaptations without forcing the legislature to enact more permanent and potentially damaging changes. Hamilton) (emphasis added). Hamilton). withholding of royal assent rather than an active re in the U.S. system. B as an aspect of the royal prerogative is evidence that his account was intended as a mechanic, structural a As power. kingly on take backward-looking even descriptive, 2020] 2020] prerogative executive’s the borders, nation’s the within lie hand at matters the When is especially circumscribed. ORIGINALIST SIN 1083 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 king is not bound by any , unless he be named therein by special words.” particular and eralist No. 69, he specifically contrasts the presidential veto, which can be over- programmes/bbc_parliament/2327561.stm. his position to say that “[a]n absolute executive. the upon legislature the of encroachments” the against “barrier rather than absolute, negative makes more sense because it would be “more readily“more be would it because sense more makes negative absolute, than rather however, fell into disuse following the Glorious Revolution and the ascendancy of Parliament. lation without further recourse by the legislature would be tantamount to retaining no provided typically constitutions state Early government. of system monarchical a veto power for their executives. provisions provisions in parliament, as he judges improper to be passed.” by an act of Parliament as long as that act was “expressly made for the preservation the for made “expressly was act that as long as Parliament of act an by of public rights and the suppression of public wrongs, and does not interfere with the established rights of the crown . . . .” turned by a two-thirds vote of both houses, with the “absolute negative” enjoyed by the British crown, the “disuse” of which in recent years had not “affect[ed] the reality of its existence.” C Y 42513-lcb_24-3 Sheet No. 182 Side A 08/03/2020 09:57:48 A 08/03/2020 182 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 182 Side B 08/03/2020 09:57:48 , M K & It C Y # supra " RT " , ,A 99 (The Li- King William NDEPENDENT RITINGS EBATE ON THE THE ON EBATE NE ISTORY EBATE ON THE D ,I O D over the proceed- the over :W :H HE in ART T P Hamilton’s concern Hamilton’s in It seems the Framers the seems It ) ADISON # " " TWO EXECUTIVE BRANCHES BRANCHES EXECUTIVE TWO " M (“[I]t is evident, I think, that think, I evident, is (“[I]t note 91, at 398 (Alexander " in since the days of nominal negative nominal note 96, at 296 (James Madison); (James 296 at 96, note senate supra . art. I, § 7. However, neither Bush neither However, 7. § I, art. . , EPRESENTATIVES " Once the qualified negative, the negative, qualified the Once R ONSTITUTION " supra % " C ONST " " Reply to Wilson’s Speech and the and nstitution/Presidential-Vetoes/Presiden- C RITINGS unicates the wisdom of weakening the t vetoes,” as ostensibly authorized by art. I, § ain, perhaps naively) supposed, “watch RITINGS :W OUSE OF control, the unity of the system would be de- H Today, vetoes are rarely used, for reasons :W "" " on the legislative acts of the States, as hereto- as States, the of acts legislative the on lies to Findley (Dec. 1, 1787), EBATE ON THE president general president TATES AMILTON D S ADISON H NEVER DARED TO EXERCISE M HE in England the king only, has a in T NITED in note 154. .73, .51, ,U O O N 825 (The Library of America 1993) (1787). 196 (The Library of America 1993) (1787) 1993) America of Library (The 196 supra N , ich cannot be overridden. U.S. overridden. be cannot ich NE NE O O Madison, on the other hand, saw what became the Supremacy in allin whatsoever cases ( # , have that negative.”). ART ART " P P He also warned, regarding the presidential veto of legislation passed EDERALIST EDERALIST F F ) " " (Jan. 6, 2020), https://history.house.gov/I ,November 6, 1787, 6, ,November HE HE James Wilson, James Wilson Rep See Presidential Vetoes Presidential Vetoes T Id. James Madison to George Washington (Apr. 16, 1787), T An Officer of the Late Continental Army, Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), Letter from James Madison to Thomas Jefferson Early drafts and debates regarding the Constitution resulted in objections to Historically, the presidential veto was rarely used prior to the Civil War. 153 154 155 148 149 150 151 152 AZETEER RCHIVES ONSTITUTION ONSTITUTION is perhaps quaint, but this argument, from the foremost proponent of the strong executive among the Framers, vividly comm royal negative. fore exercised by the Kingly prerogative, appears to me sary . . . .” to be absolutely neces- nor Obama issued any pocket vetoes. by Congress, that an absolute negative “might not be exerted firmness . . . and it might be perfidiously abused.” with the requisite veto as we know it today, was inserted, it was seen as an appropriate power for the executive, since he would, the Framers (ag affection.” and care paternal with [country] whole the over Hamilton). note 96, at 81. whereas by the new constitution, both the both constitution, new the by whereas that a president might be overly irritate,” worried to apt andmore tendencies, and “harsh, actions about take to unwilling therefore the appearance of monarchical tial-Vetoes/. These figures include “pocke so-called wh Constitution, the of 7 Clause as the equivalent to the royal negative, writing that, for the national govern- negative “a ment, G C A C 1084 exercised,” since presidents “who might be afraid re-consideration.” for it return to scruple not might VETO, to defeat a law by [a] single LEWIS & CLARK LAW REVIEW [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 see also see OF GOVERNMENT OF and the first half of the 20th century. became a relatively more frequent occurrence in the latter half of the 19th century the proposed allocation of the absolute negative. absolute the of allocation proposed the brary of America 1993) (1787) (“In (1787) 1993) America of brary without the royal negative or some equivalent stroyed.”). may have underestimated the frequency with which two-thirds of the members of Congress can agree on anything, especially when relatively equal, sharply divided parties form impenetrable blocs. ings of the legislature, which he has 42513-lcb_24-3 Sheet No. 182 Side B 08/03/2020 09:57:48 B 08/03/2020 182 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 183 Side A 08/03/2020 09:57:48 " * ( " " In "* " " ( ADIO (Mar. (Mar. " " .R UB P L OLITICO ’ ,P AT ,N s://fivethirtyeight.com/fea- In addition, the Mutiny Act # "* Comparing Obama’s Veto Rates to Other s.com/politics/rare-but-hardly-unprece- invalidating the Line Item Veto Act, evolution included the provision “[t]hat is another instance in which the executive This power extended “not only to fleets and fleets to only “not extended power This Far from being an absolute ability to negate com/story/2019/03/15/trump-veto-national-emer- "*% Trump Issues First Veto of His Presidency "*) see also Rare, but Hardly Unprecedented: History of Veto Over- Veto of History Unprecedented: Hardly but Rare, also see npr.org/sections/itsallpolitics/2013/02/22/172698717/ 5 Reasons Vetoes Have Gone Out of Style (Feb. 23, 2015, 4:30 PM), http -of-style; Leah Libresco, Overriding Overriding a presidential veto has always been a rare note 154. note 154; note ) IGHT " " E note 9, at 170. note 9, at 170–71. supra supra , , supra supra HIRTY Clinton v. City of New York , , T Alan Greenblatt, IVE As the commander in chief (or “generalissimo,” in Blackstone’s par- Blackstone’s in “generalissimo,” (or chief in commander the As (Sept. 28, 2016), https://www.foxnew b. Raising Armies ’, F "*" see also EWS ; N LACKSTONE LACKSTONE Presidential Vetoes Eliana Johnson & Kate Galioto, Vetoes Presidential Clinton v. City of New York, 524 U.S. 417, 421 (1998). B The Sole Act King’s the 1661, Right Militia 13 Over Car. 2 c. 6 (Eng.). B English Bill of Rights 1689, 1 & 2 W. M. c. 2 (Eng.). Id. OX The royal prerogative included “the sole power of raising and regulating fleets 157 158 159 160 161 162 163 164 156 ,F M K by statute following the Restoration. the following statute by This is another area where Blackstone seems behind the times, since the Declaration the since times, the behind seems Blackstone where area another is This of Rights issued following the Glorious R the raising or keeping a standing army within the kingdom in time of peace, unless it be with the consent of parliament, is against law.” Franklin Delano Roosevelt issued 635 vetoes during his 12-year presidency, while George W. Bush and Barack Obama issued 24 during their combined 16 years. As of this writing, Donald Trump has recently issued his first veto, more than two years into his presidency. addition to its rarity, the veto power was restricted in Court’s decision its in scope by the Supreme tures/comparing-obamas-veto-rate-to-other-recent-presidents/. (May 9, 2013, 10:17 AM), https://www. AM), 10:17 2013, 9, (May five-reasons-vetoes-have-gone-out lowing the remainder to take effect. which had allowed a president to veto particular sections of a passed act while al- feat, accomplished only once before 1850, only 111 times (7.4% of all overridable vetoes) in the nation’s history, and only 8 times since the Reagan presidency. 2020] 2020] ranging from the infrequency of Congressional action to the rise in signing state- ments to the role of the executive branch in shaping prospective legislation. ORIGINALIST SIN 1085 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 subjects within the realm or recall them from overseas for purposes of defense. armies, but also to forts, and other places of strength,” and also included both the ability to prohibit the exportation of arms or ammunition and the right to confine rides 15, 2019, 5:04 PM), https://www.politico. lance) of the military, it seemed logical that a monarch would also have control over control have also would monarch a that logical seemed it military, the of lance) during relinquished was power This forces. armed the of enlistment and creation the re-established was but I, Charles of reign the during began that Parliament Long the any legislative act, then, the veto power prerogative is sharply curtailed compared to its royal predecessor. of 1689 established a precedent of Parliamentary control over the administration of administration the over control Parliamentary of precedent a established 1689 of dented-history-of-veto-overrides. gency-1223285. and armies.” and Recent Presidents C Y 42513-lcb_24-3 Sheet No. 183 Side A 08/03/2020 09:57:48 A 08/03/2020 183 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 183 Side B 08/03/2020 09:57:48 : , M K C Y infra ADISON M Hamilton, in (1952). "*( 579, 637 note 91, at 265–66 (Alexander 343 U.S. ), supra , RITINGS Steel Seizure :W nt Trump’s emergency declaration shifting declaration emergency Trump’s nt % ( " AMILTON In addition, military appropriations are limited to H ) in "* They placed the power to declare war in the hands of the the of hands the in war declare to power the placed They .25, note 9, at 175. O N "** supra note 94, at 90. , . art. I, § 8, cl. 12, 13, 15. ) supra ( note 96, at 562–65. c. Appointment and Removal " " EDERALIST ONST Whether the Supreme Court as currently constituted upholds that prec- that upholds constituted currently as Court Supreme the Whether "* F " ( These powers, which “the Constitution had carefully & jealously supra

" HE LACKSTONE , Rakove, Id. U.S. C James Madison, Speech in Congress on the Jay Treaty (Mar. 10, 1796), Id. T Youngstown Sheet & Tube Co. v. Sawyer ( B ( "* Instead of yielding to Blackstone’s retrospective approach to this power, the As far as the power to control military appropriations is but a subset of the Blackstone has little to say about the royal power to appoint or remove gov- While the Constitution provides the executive with the “Power, by and with 165 166 167 168 169 170 171 172 RITINGS of the president and Senate. visors was one of the few aspects of the unfettered prerogative that remained rela- tively unchallenged. In the same manner that the monarch may confer “degrees of nobility, of knighthood, and other titles,” he also erecting and disposing possesses of offices.” “the prerogative of legislature, and they also opted to specifically assign the power to “raise and support support and “raise to power the assign specifically to opted also they and legislature, Armies,” “provide and maintain a Navy,” and “call[] forth gress. the Militia” to Con- Framers’ “real imperative was to preserve the legacy of 1688 and the principle of supremacy.” legislative two-year periods, as “a most important check & security agst. the danger of standing of danger checkthe important agst. most security “a & as periods, two-year objects.” rational its beyond war a of prosecution the against & armies, Justice Jackson’s zones as outlined in the Steel Seizure case; that is, when a president president a when is, that case; Seizure Steel the in outlined as zones Jackson’s Justice his of ebb” “lowest the at is Congress,he of will expressed the to contrary acting is authority. general power of the purse granted to Congress (and to the House of Representa- con- to executive the by action been rarely has there originate), to particular in tives arrange- this to challenge recent a However, requirement. constitutional this travene Preside of form the in emerged has ment to order in appropriations mandated congressionally their from away funds military The Mexico. with border States’ United the along wall a of construction the finance executive prerogative as it relates to emergencies is discussed in Section III, but suffice it to say here that this situation seems to fall clearly within the third of edent remains to be seen. ernmental ministers, most likely because the king’s power to enlist and dismiss ad- concerned about the vulnerability of the young nation, spoke straints on the discretion of the Legislature,” but against stopped short of arguing that the these “re- in vested be should forces standing other and garrisons maintain and raise to power the president. W 1086the military. LEWIS & CLARK LAW REVIEW [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 Hamilton). lodged . . . in Congress,” could not be abrogated even by the treaty-making power 42513-lcb_24-3 Sheet No. 183 Side B 08/03/2020 09:57:48 B 08/03/2020 183 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 184 Side A 08/03/2020 09:57:48 In fact, In " ( " This phrase, (( " an at the pleasure of the crown); Creating S. 602, 603 (1935);603 602, S. 272 States, United v. Myers 1 Geo. 3 c. 23 (Eng.) (extending judges’ terms bolishing Court of Star Chamber and expanding dding reduction of their salaries by the crown); Such debates have continued almost uninter- As much as they were reacting against monar- # % ( ) " " as well as what degree of insulation from presiden- from insulation of degree what as well as * 654, 732–33 (1988) (Scalia, J., dissenting);J., (Scalia, (1988) 732–33 Synar, v. 654, Bowsher The natural evolution of this line of thinking is that is thinking of line this of evolution natural The ( " ) " ( ) " " note 9, at 171. note 9, at 172–73. This comports with the view that, in criminal prosecutions, criminal in that, view the with comports This ( ( " supra supra note 16, at 45. , , ., art. II, § 1, cl. 1. . art. II, § 2, cl. 2. supra d. Execution of the Laws ONST ONST In sum, Blackstone, despite his gestures toward England’s monarchical The king, though he has the “whole executive power of the laws,” cannot laws,” the of power executive “whole the has he though king, The at 173. at 107. " ) LACKSTONE LACKSTONE () " U.S. C B Act of Settlement 1701, 12 & 13 Will. 3 c. 2 § 3 (Eng.) (judges’ terms are for good be- B Id. Id. U.S. C Fatovic, U. 295 States, United v. Ex’r Humphrey’s U.S.Olson,487 Morrisonv. " Last but certainly not least, the Vesting Clause of Article II of the Constitution Constitution the of II Article of Clause Vesting the least, not certainly but Last The Take Care clause is an obvious echo of the first provision in the English 177 178 179 180 181 182 173 174 175 176 M K justice be in some degree separated both from the legislative and also the executive the also and legislative the from both separated degree some in be justice power.” havior during current monarch’s reign Commissions rather and Salaries th of Judges Act 1760, dictates that “[t]he executive power shall be vested in a President.” rupted to the present day. Several Supreme Court decisions have attempted to dif- ferentiate which officers may be removed by the president at will and which can cause, with dismissed be only “[t]he first major debate over the meaning of executive power concerned the proper the concerned power executive of meaning the over debate major first “[t]he location of the removal power.” tial fiat remains constitutional. the subject of unending interpretation and speculation, derives from the monarch’s the from derives speculation, and interpretation unending of subject the role in English common law as “the fountain of justice” and “conservator of the peace.” practicably exercise such power on his own. Hence the existence of courts, which established century, 18th the by had, which but authority crown’s the under operate Amer- the for Framers the by envisioned that resembles that independence of level a branch. judiciary ican 2020] 2020] the Advice and Consent of the Senate” to appoint “inferior Officers,” it contains officers. such removing of process the regarding whatsoever guidance no ORIGINALIST SIN 1087 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 chical rule, the Framers were also operating from an environment where the crown the where environment an from operating also were Framers the rule, chical had been essentially neutered by Parliament. Bill of Rights, which declared that the suspending and dispensing prerogatives al- lowing monarchs to ignore in different ways the laws passed by Parliament were 478 U.S. 714, 715 (1986). beyond that of the current monarch and forbi Habeas Corpus Act 1640, 16 Car. c. 10 (Eng.) (a use of writ of habeas corpus). U.S. 52, 53 (1926). past, subscribed to the primacy of the legislature: “True it is. That what they do, no do, they what That is. it “True legislature: the of primacy the to subscribed past, authority upon earth can undo.” “the public liberty . . . cannot subsist long . . . unless the administration of common of administration the long . . . unless subsist liberty . . . cannot public “the the king is in effect the prosecutor, and thus it would be improper for him to preside to him for improper be would it thus and prosecutor, the effect in is king the well. as proceedings the over C Y 42513-lcb_24-3 Sheet No. 184 Side A 08/03/2020 09:57:48 A 08/03/2020 184 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 184 Side B 08/03/2020 09:57:48 # M K ) " C Y HOMAS T More recent More "() APERS OF APERS Additionally, an P ( ) " HE During the Constitu- 6T " ) in " , id not consider the Prerogatives A Constitutional and Historical Re- Only after the drafting did the did drafting the after Only )( " 2015)and part in concurring J., (Thomas, rer of the British system among the Framers, the among system British the of rer fy . . . the principal articles implied in the def- the in implied articles principal fy . . . the It would be vesting in the President a dispens- granted’ in Article II, the Constitution indicates Constitution the II, Article in granted’ “the execution of all laws passed” as but one of one but as passed” laws all of execution “the ow from the general grant of that power . . . .”). defining the Executive powers[;]” James Madison “The framers, it may be said, did not even ecutive powers,” which “should be confined and * ) " Stokes, 37 U.S. (12 Pet.) 524, 613 (1838) (“This is a doc- note 91, at 805 (“The enumeration [of executive powers ption of its overall prerogative). The interpretation that allows presidents the broadest the presidents allows that interpretation The supra ex rel. , " "( .Q.376, 382 (2012). 382 .Q.376, note 9, at 162. The Framers and Executive Prerogative: Jefferson’s Draft of a Constitution for Virginia for Constitution a of Draft Jefferson’s note 46, at 1169. note 5, at 65, 70, 292 (James Wilson “d This principle was reinforced by the Supreme Court when it TUD note 50, at 280. This, however, raises the question of why Article II lists specific specific lists II Article why of question the raises however, This, S supra

" , ) note 8, at 335. )) supra " "(" " supra Pacificus No. I supra , supra Zivotofsky v. Kerry, 135Kerry, v. Zivotofsky ( 2098 2076, Ct. S. at 1178. 298–99 (Julian P. Boyd ed., Princeton Univ. Press 1952) (1783). Aconsensus from the Supreme Court has not emerged as to what, exactly, exactly, what, to as emerged not has Court Supreme the from Aconsensus LACKSTONE ARRAND RESIDENTIAL David Gray Adler, Hamilton, B Shane, Mortenson, Id. Cf. Reinstein, Kendall v. United States Jefferson, Thomas F "(% Nonetheless, in recent decades “the executive power” has become “the last The Framers certainly agreed with the distinction between the creation of laws of creation the between distinction the with agreed certainly Framers The 187 188 189 190 191 192 193 183 184 185 186 , 42 P EFFERSON inition of Executive Power; leaving the rest to fl tion.” best hope of Presidents who want to take action without legislative authoriza- dissenting in part) (“By omitting the words ‘herein words the omitting (“By part) in dissenting the Vesting Clause means. Clause Vesting the buke trine that cannot receive the sanction of this court. this of sanction the receive cannot that trine ing power, which has no countenance for its support in any part of the constitution.”). its enumerated powers, not a descri of the British Monarch as a proper guide in “agrees with Wilson in his admi biggest definition the Hamilton, Alexander of and defined[;]” ex examination of state constitutions drafted during the first decades after federal rat- ification has “demonstrate[d] that the unitary executive model was not the original executive.” chief a in power executive of vesting the of construction and the process of putting them into practice. In 1783, Thomas Jefferson wrote that wrote Jefferson Thomas 1783, In practice. into them putting of process the and our under exercised powers those to reference no mean we powers, Executive “[b]y former government by the Crown as of its prerogatives.” squint in the direction of presidential prerogative.” presidential of direction the in squint royal prerogative. royal precise contours of the Vesting Clause become hotly debated, with Hamilton taking Hamilton with debated, hotly become Clause Vesting the of contours precise the more expansive view that the “executive power” was closer in nature to the research has definitively shown that the phrase “executive power,” at the time of the Framing, meant nothing more than the power to execute laws validly enacted by the legislature. J 1088 henceforth illegal. LEWIS & CLARK LAW REVIEW [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 powers granted to the president if its opening clause was intended to be self-expli- laws execute to power the of classification Blackstone’s with conflicts also It cating. as merely one subset of the already truncated royal prerogative. in Article II] ought . . . to be considered . . . to speci considered . . . to be ought . . . to II] Article in denied President Andrew Jackson’s asserted power to ignore a writ of mandamus. of writ a ignore to power asserted Jackson’s Andrew President denied tional Convention, the general consensus was that the executive power was utterly distinct from the royal prerogative. proposed anproposed listed but term, life a with executive 42513-lcb_24-3 Sheet No. 184 Side B 08/03/2020 09:57:48 B 08/03/2020 184 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 185 Side A 08/03/2020 09:57:48 ! & " (Jackson, J., , the single the , "#' PREROGATIVE 1 (2018). 8 (1973) (“[T]he Founding 579, 641 (1952) Since Blackstone was writ- Locke’s vision of the execu- see, and so by laws to provide for, provide to laws by so and see, "## "#& 343 U.S. RESIDENCY ), P Second Treatise on Government on Treatise Second the presidential office of the generic powers illiam J. Haynes II, Dep’t of Def. Gen. Counsel Gen. Def. of Dep’t II, Haynes J. illiam , decisive, and speedy execution of the laws”); in Libya, 35 Op. O.L.C. 1, 6 (2011); April 2018 is not confined to those powers expressly iden- nition of prerogative, plainly stated, is the U.S. 681, 712 (1997) (Breyer, J., concurring) (the MPERIAL I Steel Seizure an by any other political philosopher.”). HE ., T R ,J -Weapons Facilities, -Weapons 42 O.L.C. 1, Op. note 46, at 1215. note 50, at 271. CHLESINGER note 9, at 375 (“[I]t is impossible to fore to impossible is (“[I]t 375 at 9, note note 9, at 375. “The philosopher John Locke’s taxonomy of legislative, execu- supra supra M. S supra "#% supra LOCKE’S TAXONOMY OF THE , , Memorandum from the Off. of Legal Counsel on Military Interrogation of Alien (the Vesting Clause is “an allocation to VI. But what about the notion of prerogative that exists independent of the RTHUR OCKE OCKE See Reinstein, L Mortenson, A L "#$ Regarding Blackstone, the preceding should be sufficient to demonstrate that Locke’s conception of executive prerogative has been hotly debated, with While Blackstone outlined the structural nature of the royal prerogative, Locke prerogative, royal the of nature structural the outlined Blackstone While 194 195 196 197 198 199 M K constitutional framework? Unlawful Combatants Held Outside the U.S., to W to U.S., the Outside Held Combatants Unlawful (Mar. 14, 2003); Authority to Use Military Force Airstrikes Against Syrian Chemical Fathers were more influenced by Locke th ing much closer temporally to the events of the and the Fram- the and Revolution American the of events the to temporally closer much ing ing of the Constitution, it is important to understand the historical context within which Locke, writing in the late 17th century, was operating. Having witnessed the Without a chief executive who makes the politically masochistic decision to forgo imagine to hard is it accumulated, have predecessors her powers the of some least at an easily trodden path back to a more balanced arrangement of powers. And yet, the current arrangement is not, in most significant ways, what sioned. the Framers envi- “most of the prerogatives that the King had exercised were vested completely in Congress, prohibited to the President, or altogether omitted from the tion.” Constitu- tive, and federative (i.e. foreign affairs and national security) powers of the govern- the of powers security) national and affairs foreign (i.e. federative and tive, ment was the Founders’ most important referent.” scholars lining up on both sides. His defi that the ‘executive Power’‘executive the that President the in vested tified in the document.”); Clinton v. Jones, 520 executive power consists of “energetic, vigorous Youngstown Sheet & Tube Co. v. Sawyer concurring) ( 2020] discretion has, unsurprisingly, been embraced by every recent president to some degree or another, especially with regard to national security and foreign affairs. ORIGINALIST SIN 1089 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 all Accidents and Necessities, that may concern the publick.”). tive prerogative is laid out in Chapter 14 of his of 14 Chapter in out laid is prerogative tive most influential document in the drafting of the U.S. Constitution. thereafter stated”). “[p]ower to act according to discretion, for the publick good, without the prescrip- tion of the Law, and sometimes even . . . .” against it probed the ways that the executive could, or should, function outside of the other- unforeseen or urgent to reaction in typically government, of structure ordained wise circumstances. C Y 42513-lcb_24-3 Sheet No. 185 Side A 08/03/2020 09:57:48 A 08/03/2020 185 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 185 Side B 08/03/2020 09:57:48 M K It C Y only (( % . 209, 209 (2007). 209 209, . EV This limitation of .R " , promulgated and ( Of those who bene- % CI % ( ( % .S ( % OL .P This could easily be read to M # ( % And even this is unclear as to standing Laws (" % , 101 A 101 , * ( ical anthropology mentions the development % Can the Prince Really Be Tamed? Executive Prerogative, Popular , or abroad to prevent or redress Foreign Injuries, and note 25, at 54. note 25, at 564. note 9, at 375. note 9, at 353. Historically, from Locke’s perspective in the late 17th century, " supra ( , % supra supra supra , , Benjamin A. Kleinerman, at 211–12 (“[E]ach time [Locke’s] polit at 216. OCKE OCKE ATOVIC Jenkins, L F L Id. See Id. Id. Even though Locke indicated that the “right of resistance” famously granted Nonetheless, Nonetheless, Locke still realized the importance of a single leader possessing This recognition of a degree of “public apathy” finds illustration in the reaction the in illustration finds apathy” “public of degree a of recognition This Locke says that “whoever has the Legislative or Supream Power of any Com- 200 201 202 203 204 205 206 207 by him to the citizenry was an effective check on potential abuses of any executive prerogative, there is evidence that he considered it more of a theoretical than prac- tical limitation. fitted from the Act, few were willing to oppose it on the grounds that the king had no power to suspend the rule of law—most were happy to accept the benefits it the Fire, when the [one] next to it is burning.” the once absolute power of the crown. the ability to act with vigor and alacrity, and to speak for the nation with a single voice when necessary. However, this leader’s prerogative authority is limited in cir- crys- than less is prerogative the of delineation precise The duration. and cumstance tal clear in Locke’s writing. The only concrete example he provides is the obvious and unilluminating metaphor of “pull[ing] down an innocent Man’s House to stop Apathy, and the ConstitutionalLocke’sthein Frame andApathy, Treatise Second say that, even in the face of imminent enemy invasion, or during a time of war, a president may not act, domestically at the very least, outside what the law allows. was only this reality that allowed him to imagine a post-monarchical arrangement of governmental powers, with a non-hereditary, circumscribed executive replacing 1090increas- the to reacting clearly was Locke Rights, of Bill English the of issuance the ing ability and willingness of Parliament to defy and even dethrone monarchs. LEWIS & CLARK LAW REVIEW [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 English citizens had only ever objected to the excessive use of the royal prerogative royal the of use excessive the to objected ever only had citizens English when it oppressed them, not out of some sense that separation principle worth preservingof powers was for its own sake. a to the Act of Indulgence of 1672, in which Charles II exercised his royal prerogative prerogative royal his exercised II Charles which in 1672, of Indulgence of Act the to to “grant[] an indulgence to religious Noncomformists and suspend[] the enforce- ment of penal laws against both Dissenters and Catholics.” mon-wealth, is bound to govern by establish’d known to the people, and not by Extemporary . . . .” Decrees of constitutionalism, he describes it as following from kingly abuse.”). the executive’s power would seem to extend even to military matters, as the “Su- pream Power” is also bound “to imploy the force of the Community at home, in the Execution of such Laws secure the Community from Inroads and Invasion.” whether it is meant to describe a use of the pardon power (to forgive one who takes who one forgive (to power pardon the of use a describe to meant is it whether the action) or the executive prerogative (to order the action). 42513-lcb_24-3 Sheet No. 185 Side B 08/03/2020 09:57:48 B 08/03/2020 185 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 186 Side A 08/03/2020 09:57:48 In " supra " , % OCKE REATISES OF T ”. L 287 (The Library (The 287 This points to a to points This "( WO % T "" % S ’ RITINGS “The people’s right to right people’s “The " :W " % OCKE note 208, at 111–12. preservation of Society of preservation &L EFFERSON supra J in the hands of our wisest and best and wisest our of hands the in , § 160 (the executive may act “. . . without in nst it . . . .”). This anomaly can also be un- , y act against specific positive law but in the in but law positive specific against act y OLITICS P largest Locke “did not believe that all executives with id. SHCRAFT % A " , which . . . is the . . . is which , lves against the rise of authoritarianism. % see also EVOLUTIONARY . . . for the harm of the people . . . .” . . . people the of harm the for . . . ,R Notes on the State of VirginiaStateofthe on Notes and at pleasure . . . .”), note 25, at 64. note 25, at 41. note 25, at 44; note 9, at 378. note 9, at 377. Locke himself “supported the king’s power to suspend penalties penalties suspend to power king’s the “supported himself Locke SHCRAFT Prerogative § 137 of the Second Treatise (“For all the power the government has . . . it This reliance on virtue in the executive can help to explain the A () supra supra supra % , , , # supra supra " arbitrary , , % 34–35 (1986). first and fundamental natural Law natural fundamental and first This somewhat cynical view of human nature finds an echo in Thomas at 6. ICHARD (* OCKE OCKE ATOVIC ATOVIC ATOVIC In fact, there is, for Locke, not much in between. He “provides no internal no “provides He between. in much not Locke, for is, there fact, In % L F Id. L Compare id. F R F Jefferson, Thomas * " % A lack of absolute faith in the citizenry to act in a principled manner also pro- 211 212 213 214 215 216 208 209 210 M K OVERNMENT derstood as Locke’s acknowledgement that a ruler ma ruler a that acknowledgement Locke’s as derstood “the of service the prescription of the Law, and sometimes even agai tive.” beyond and even against the strict letter of the law in cases of emergency.” ought not to be overthrow a tyrannical executive constituted the last line of defense against abuses of prerogative . . . but the first line of defense would be the virtue of the execu- significant difference between the views of Locke and Madison and those of unitary unitary of those and Madison and Locke of views the between difference significant per- the between distinction “critical a saw former the today: proponents executive son and the office of the executive[.]” seeming incongruity between Locke’s insistence on the primacy of the rule of law prerogative. expansive potentially a of description his and mechanism [such as impeachment or judicial oversight] to adjudicate constitutional adjudicate to oversight] judicial or impeachment as [such mechanism fact, Locke wrote, “Prerogative was always was “Prerogative wrote, Locke fact, note 9, at 355–66. G 2020] 2020] them. provided ORIGINALIST SIN 1091 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 liberal democracies are slow to rouse themse of America 1984) (1785). Such concerns surely find an echo today as even supposedly advanced against nonconformists because the benefits to the public secured by prerogative in prerogative by secured public the to benefits the because nonconformists against this instance outweighed the power.” danger inherent in any augmentation of royal Jefferson’s Jefferson’s concern that, as a society grows more and more comfortable and afflu- ent, its citizens will devote themselves to the “sole faculty of making money, and will never think of uniting to effect a due respect for their rights.” vides a rationale for Locke’s inclusion of “the publick good” in his definition, as well as his warning “[t]hat the Reigns of good Princes have been always most dan- gerous to the Liberties of their People,” because they would allow their successors to “draw the Actions of those good Rulers into their of Standard Precedent, and make them the A. The Importance of “Virtue” were equally entitled to the same degree of deference” and that “[o]nly those exec- utives with reputations for public virtue . . . would enjoy additional leeway to act Princes . . . .” C Y 42513-lcb_24-3 Sheet No. 186 Side A 08/03/2020 09:57:48 A 08/03/2020 186 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 186 Side B 08/03/2020 09:57:48 , " M K ") %%% %% % C Y ORKS OF # 11 W %% in note 91, at 268 (Alexander note 91, at 253–57 (Alexander supra , by which it is to be attained.”). by which supra , ; the persons, from whose agency the The “flexibility and suppleness of end means on the Constitutionality of Executive Prerogative "* RITINGS % RITINGS trictions, that cannot be . . . impairs observed :W :W Dr. James Brown (Oct. 27, 1808), AMILTON AMILTON H H in in Hamilton saw the need for an energetic executive who " .25, .23, O %% .Q.121,125 (1979). .Q.121,125 O N N TUD note 25 at 57. .Q.267, 274 (1989) (“Publius’ doctrine of proportionate means culmi- means proportionate of doctrine (“Publius’ (1989) 274 .Q.267, “The God-Like Prince”: John Locke, Executive Prerogative, and the American Pres- American the and Prerogative, Executive Locke, John Prince”: God-Like “The ought to be proportioned to the S is expected, ought to possess the 53 (Paul Leicester Ford ed., Knickerbocker Press 1905) (1808). . art. II, § 1, cl. 8. TUD supra S end , means EDERALIST EDERALIST ONST

F F ( " ( at 69. % HE HE ATOVIC EFFERSON %% RESIDENTIAL J F Leonard R. Sorensen, T U.S. C T Id. Letter from Thomas Jefferson to Arnhart, Larry Proponents Proponents of a broad executive power often argue that Locke’s prerogative In the Constitution, the executive prerogative, to whatever extent it exists, is This is probably the more widespread view of the Lockean executive preroga- , 9 P RESIDENTIAL 220 221 222 223 224 217 218 219 HOMAS breaches.”). that sacred reverence . . . towards the constitution of a country, and forms a precedent for other pansive and implicit. For him, the powers granted by Article II are plenary, and the and plenary, are II Article by granted powers the him, For implicit. and pansive wording of the Oath of Office implies the ability to take whatever actions are nec- essary to “preserve, protect, and defend the Constitution of the United States.” ble if, as Jefferson wrote, “we had bound our hands by manacles of the law.” derives from natural law rather than positive law. After all, it absurdity would to include be the power a to ignore logical the Constitution within the Constitution itself, and the Framers (Hamilton in particular) envisioned an executive who could legitimately, if illegally, take whatever action was necessary to protect the nation’s security. It is an obvious but relevant truism that the drafting of an American Con- possi- been have not would that revolution a of because possible only was stitution Hamilton) (“[F]ettering the government with res He also warns that placing limits on executive authority that will inevitably be ig- nored in desperate times will only diminish respect for the rule of law. Essentially, this view holds that even without relying on an expansive interpretation expansive an on relying without even that holds view this Essentially, crisis. of times in unilaterally act to right the has president the Clause, Vesting the of This can be seen as stemming from the Lockean recognition of the inevitable con- tingencies of history. “Executive prerogative is a political response to that flux in the world that runs against the fixity of law.” Hamilton’s idea of executive power, at least in the post-ratification period, was ex- could use whatever means necessary to protect the rights and security of citizens. of security and rights the protect to necessary means whatever use could Locke’s constitutionalism” differentiated him from many of his republican contem- republican his of many from him differentiated constitutionalism” Locke’s poraries. T 1092disputes.” LEWIS & CLARK LAW REVIEW [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 B. Locke and the Framers 19 P idency Hamilton) (“The lodged in Article II, and in particular in the Vesting Clause, the Take Care Clause, tive, one that informed the “doctrine of proportionate means” outlined by Hamil- ton in Federalist No. 23. nates in executive prerogative.”). attainment of any 42513-lcb_24-3 Sheet No. 186 Side B 08/03/2020 09:57:48 B 08/03/2020 186 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 187 Side A 08/03/2020 09:57:48 ) %% (Alexander passim note 91, but more recent schol- " %% note 91, at 297–300 (Alexander 297–300 at 91, note supra , Hamilton felt that the text of text the that felt Hamilton The Constitution and Executive Preroga- * supra , %% RITINGS This debate, as we have seen, goes at :W "" RITINGS is equally applicable to the government as a a as government the to applicable equally is % %%* :W AMILTON H AMILTON in (1 Cranch) 137, 176 (1803). Chief Justice Marshall was writ- was Marshall Justice Chief (1803). 176 137, Cranch) (1 H : “To what purpose are powers limited, and to what in . 41, O .31, N O note 46, at 1619. N Constitutionalism and Presidential Prerogative: Jeffersonian and Hamiltonian Per- Hamiltonian and Jeffersonian Prerogative: Presidential and Constitutionalism . 429, 429 (2004); Zachary Moore, CI note 94, at 87 (“Federalism considerations, in other words, trumped sepa- trumped words, other in considerations, (“Federalism 87 at 94, note note 229, at 430. note 229, at 136. .S supra L.J. 134, 134 (2007). OL EDERALIST note 102 and accompanying text. supra supra supra F EDERALIST It is less surprising that two leading voices in the drafting of the Con- .J.P F Marbury v. Madison HE M ( at 137. %% HE This was reflected in his decision to unilaterally approve the Louisiana Pur- Louisiana the approve unilaterally to decision his in reflected was This See supra Rakove, Fatovic, Clement Fatovic, Moore, Id. U.S. 5 Madison, v. Marbury T Mortenson,

ARTMOUTH Jefferson “felt that, when necessary, the executive can and should act outside act should and can executive the necessary, when that, “felt Jefferson " % , 48 A " " ( Since then, in the most prominent cases where the Supreme Court has weighed has Court Supreme the inwhere then, cases Since prominent most the The tension between these two views is reflected in the contrast between the % % " 227 228 229 230 231 232 233 225 226 % , 5 D M K gressional inaction, the Court has come down squarely on the side of placing limits placing of side the on squarely down come has Court the inaction, gressional on such authority. The principle was explicitly stated in the Court’s most founda- tional text, purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” in on claims of expansive executive prerogative in times of national crisis or Con- Madison. arship suggests, especially with regard to the Vesting Clause, that the phrase “exec- to power the execute to literally only framing the of time the at referred power” utive laws passed by Congress and not to any other foreign or domestic power beyond those otherwise enumerated in Article II. least as far back as the Pacificus-Helvidius debates of 1793 between Hamilton and Jeffersonian and Hamiltonian ideas of prerogative. of ideas Hamiltonian and Jeffersonian stitution would have such divergent views, federal between and disputes the that that realizes one once topic, the the on vague maddeningly Constitution itself is so time. the at urgent more much were matters security national of control state and the bounds of law, but the burden is on him to disprove criminality before the peo- the before criminality disprove to him on is burden the but law, of bounds the ple.” Hamilton). 2020] 2020] and/or the Oath of Office. Federalist Nos. 31 and 41 indicate that the executive prerogative is granted by one or more of these passages, ORIGINALIST SIN 1093 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 the Constitution authorized the executive to act in ways that went against the wishes the against went that ways in act to executive the authorized Constitution the of the legislature at times, and that such actions, when taken, were inherently le- gal. ration of powers.”). spectives ing about the legislative branch, but the reasoning whole. tive chase, a decision that was highly controversial and seen by some as hypocritical, but hypocritical, as some by seen and controversial highly was that decision a chase, that was ultimately validated by Congressional tion. action and by Jefferson’s reelec- Hamilton); T C Y 42513-lcb_24-3 Sheet No. 187 Side A 08/03/2020 09:57:48 A 08/03/2020 187 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 187 Side B 08/03/2020 09:57:48 ; M K Id. C Y While "# % President Tru- * Milligan, 71 U.S. (4 " % ive indemnification, even indemnification, ive The government’s at- ( .Q.321, 324–29 (1952). 324–29 .Q.321, # Ex parte This strongly implies that implies strongly This % CI ( .S " ]f the authority which the consti- % ), 343 U.S. 579, 580 (1952). OL .” , 67 P ing the late civil war, in a State not invaded not State a in war, civil late the ing , Wilmerding describes a 1793 controversy controversy 1793 a describes Wilmerding , judicial officers, may thus, upon any pretext Steel Seizure 1824) (“It may be fit and proper for the gov- sident of a rebellious State, nor a prisoner of infra And Congress could not invest them with any any with them invest not could Congress And ral courts were open, and in the proper and un- response to a genuine national emergency. an 1807 use of unappropriated funds by President by funds unappropriated of use 1807 an ppropriateness of legislat of ppropriateness on, or post hoc legislative indemnification, ce that a state of war existed, which demanded and ack) 635, 636 (1863) (“The proclamation of blockade of proclamation (“The (1863) 636 635, ack) there isn’t any evidence of an alternative methodol- alternative an of evidence any isn’t there " " al functions, had no jurisdiction to try, convict, or sentence for % The President and the Law Abraham Lincoln’s extralegal actions during the Civil War Civil the during actions extralegal Lincoln’s Abraham ) " % . note 9, at 377 (emphasis added). and their acquiescing in it when so done so when it in acquiescing their and Merryman, 17 F. Cas. 144, 152 (1861) (“[I note 187, at 379. supra , supra note 16, at 49–50. The Apollon The OCKE There is text, as well: “Prerogative can be noth- support in Locke’s original See Ex parte Youngstown Sheet & Tube Co. v. Sawyer ( Adler, Jr., Lucius Wilmerding, listed incidents famous the to addition In L The Apollon, 22 U.S. (9 Wheat.) 362, 367 ( supra * " But, of course, emergencies do happen. Should an executive sit idly by when The practice was given credence, in dicta at least, by the Supreme Court in the in Court Supreme the by least, at dicta in credence, given was practice The % 239 240 234 235 236 237 238 indemnity.”). text of the laws. . . . [I]f the responsibility is taken . . . the Legislature will doubtless apply a proper proper a apply doubtless will Legislature . . taken . the is responsibility the [I]f laws. . . . the of text extralegal or illegal action is the only way to prevent catastrophic harm to the nation? the to harm catastrophic prevent to way only the is action illegal or extralegal rely, to been has history throughout situations such to response The not. course Of as Jefferson did, on retroactive ratificati of the actions taken. If the president believes legislature. the before that judgment for herself illegal up offer action then and it is take should necessary, she Wall.) 2, 3 (1866)(“Militarycommissions3 organized2, Wall.)dur and not engaged in rebellion, in which the Fede obstructed exercise of their judici any criminal offence, a citizen who was neither a re war, nor a person in the military or naval service. Bl (2 U.S. 67 Cases, Prize The power.”); such by the President is of itself conclusive eviden authorized recourse to such a measure.”). tution has confided to the judiciary department and or under any be circumstances, usurped by the power, military at its discretion, the people of the United States are no longer living under a government of laws.”); involving Hamilton, as Treasury Secretary, and Secretary, Treasury as Hamilton, involving a the granted for took whom of both Jefferson, when the extra-legal action was not taken Fatovic, in emergency . sudden . summary. a by ernment on . . act . to the in found not are which measures, it may be an exaggeration to say “[t]hat this doctrine was accepted by every single statesmen,” early our of one ing, but the Peoples permitting their Rulers” to act without or against the law “for Good, Publick the tory. ogy and there are numerous instances of retroactive ratification in American his- 1094C. Retroactive Ratification LEWIS & CLARK LAW REVIEW [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 man’s order to seize the nation’s steel mills in order to head off a labor stoppage during the Korean War was held to be unconstitutional. tempts to deny due process and habeas corpus to American citizens deemed to be without eventual acquiescence in some form, the action taken is not properly termed properly not is taken action the form, some in acquiescence eventual without as part of the prerogative. case 1824 were later litigated before the Supreme Court: his suspension of the writ of habeas while unconstitutional, be to held both were tribunals military of use his and corpus the naval blockade of the Confederacy he ordered was upheld. 42513-lcb_24-3 Sheet No. 187 Side B 08/03/2020 09:57:48 B 08/03/2020 187 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 188 Side A 08/03/2020 09:57:48 note 198, at supra , CHLESINGER Anything that not only certi-

% #" # more faithfulmoreoriginalthe tomeaning, llucidly clear, granted to the president the to granted clear, llucidly % % and Hamilton who was engaged in a brazen act President President George W. Bush’s use of military " # % of 2001, Pub. L. No. 107-56, 115 Stat. part of presidential power as defined in the Constitution.”); VII. CONCLUSION not S. Ct. 954, 958–59 (2019). See also the repeated extensions of the Ideally, retroactive indemnification should come from the leg- note 229, at 439–40. .”). note 187, at 383 (“The framers, it is pe is it framers, (“The 383 at 187, note ## % supra supra innovatio note 94, at 96 (“[I]t was Madison who was far was who Madison was (“[I]t 96 at 94, note Its emergence in recent decades is an effort to legitimize a view of Amer- of view a legitimize to effort an is decades recent in emergence Its , power than that enjoyed by the king of England.”); S " . # Hamdan v. Rumsfeld, 548 U.S. 557, 559–63 (2006). Fatovic, For example, the indefinite detention of non-citizens is now the law of the land in the Adler, Hamdi v. Rumsfeld, 542 U.S 507, 509 (2004). % supra As this Paper has hopefully demonstrated, however, that interpretation did not did interpretation that however, demonstrated, hopefully has Paper this As Recent administrations’ reliance on expansive executive prerogative to initiate One problem with leaving the determination of post hoc approval or disap- 242 243 244 245 241 M K executive branch and an increasingly acquiescent judicial branch ground their reli- theof reading originalist an in theory this on ance a on especially and Constitution, Hamiltonian interpretation of Lockean prerogative. military action in Libya and to enact stringent restrictions on the entry of foreign nationals into the United States, neither of which was forbidden by the courts, in- bemay theory executive unitary the for support of drumbeat the that dicate having an effect on the judiciary’s willingness to place limits on executive action. Both the fies an individual executive action contrary to the law, but also institutionalizes that institutionalizes also but law, the to contrary action executive individual an fies con- entire the subverting of risk the runs circumstances other in justified as action stitutional order. wake of Nielsen v. Preap, 139 proval or prerogative actions in the hands of the Court is that such determinations create precedent, and the legitimacy of the use of executive prerogative nature idiosyncratic is and extremely fact-dependent. by its commissions commissions to try detainees at the Guantanamo Bay facility was held unconstitu- tional and a violation of the Geneva Conventions. vast majority of provisions in the USA 272 (2001) 2020] 2020] “enemy combatants” were rebuked. ORIGINALIST SIN 1095 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 dominate during the Founding Era and has not controlled throughout the nation’s history. this leads back to the problems inherent in a comfortable, apathetic society that only that society apathetic comfortable, a in inherent problems the to back leads this objects to prerogative actions when its members are personally harmed or discom- fited by them. Popular sovereignty demands active civic engagement from its citi- zens; without it, no structural safeguards can protect them from the abuses of an evil prince. islature (as a one-off, not a statutory seal of approval) or the electorate. Of course, ican government that runs contrary to both the intention and the textual meaning of the Constitution. This is not to say that a unitary executive could not potentially be justified by a different approach, one that though the Constitution has not changed, the country and the world have. recognizes But it is the ways in which, even less, not more 9 (“The idea of prerogative was Rakove, intention, and understanding of the Constitution, the of understanding and intention, of interpretive C Y 42513-lcb_24-3 Sheet No. 188 Side A 08/03/2020 09:57:48 A 08/03/2020 188 Side Sheet No. 42513-lcb_24-3 42513-lcb_24-3 Sheet No. 188 Side B 08/03/2020 09:57:48 M K C Y * # % note 94, at 99 (“[R]ecognizing the supra e same thing as proving thatproving as thing same e inherent of idea the Rakove, see also note 8, at 330; supra Shane, 246 executive power was part of the original constitutional understanding.”). 1096 undeniable that “a persuasive settlement of the unitary executive debate requires a nonoriginalist exercise in constitutional construction.” LEWIS & CLARK LAW REVIEW [Vol. 24.3 LCB_24_3_Art_8_Mohan.docxDelete) Not (Do 7/14/20PM 10:41 inherent advantages of executive power is not th not is power executive of advantages inherent 42513-lcb_24-3 Sheet No. 188 Side B 08/03/2020 09:57:48 B 08/03/2020 188 Side Sheet No. 42513-lcb_24-3