AUTHOR'S NOTE: I thank Lou Fisher for his thorough review and insightful suggestions, Kelli Jenkins for her superb clerical support, Mark Young for timely and generous assistance, and the Idaho Humanities Council for a grant that facilitated research for this article.
The Law: The Framers and Executive Prerogative: A Constitutional and Historical Rebuke
Version of Record online: 13 APR 2012
© 2012 Center for the Study of the Presidency
Presidential Studies Quarterly
Volume 42, Issue 2, pages 376–389, June 2012
How to Cite
ADLER, D. G. (2012), The Law: The Framers and Executive Prerogative: A Constitutional and Historical Rebuke. Presidential Studies Quarterly, 42: 376–389. doi: 10.1111/j.1741-5705.2012.03971.x
- Issue online: 13 APR 2012
- Version of Record online: 13 APR 2012
Continued assertions of a presidential prerogative power, broad enough, in the literary tradition of the Lockean Prerogative to permit the president in an emergency to act in the absence or violation of law, raises anew the question of the existence, source, and scope of such extraordinary authority. This article explains that the framers of the Constitution delivered a constitutional and historical rebuke to the concept of executive prerogative. As Justice Jackson observed in the Steel Seizure Case, the framers recognized that the possession of an emergency power would “tend to kindle emergencies.” Presidential violation of the Constitution is illegal, and can be made legal only through congressional passage of retroactive ratification.