Executive Prerogative

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EXECUTIVE PREROGATIVE

Executive prerogative refers to the President's constitutionally based authority to declare policy, take action, and make law without congressional support or in the face of inconsistent congressional legislation. This authority may be seen as a corollary of the separation of powers under which the President has exclusive executive power that Congress may not invade because Congress's authority is limited to legislative powers. Executive prerogative may also refer to certain emergency powers under which the President may act contrary to the Constitution, such as spending funds without an appropriation or contrary to an act of Congress that would properly be classified as a legislative act. In the view of some eighteenth-century political theorists, the President could act extraconstitutionally or illegally if circumstances required, but he would have to seek subsequent ratification of the act. More recently, the President has justified such action on the basis of an inherent or implied authority conferred by the Constitution.

Executive prerogative mostly relates to foreign affairs but may also include domestic acts, such as actions during war or national emergency, dismissal of cabinet officers appointed with Senate participation, and assertion of executive privilege to protect communications of executive branch officials from congressional or judicial inquiry.

The Constitution does not expressly delegate a "foreign affairs" power to the President or to any single branch of the government. Indeed, the Constitution delegates most specific foreign relations powers to the Congress. These powers include the powers to declare war, to regulate foreign commerce, and to define and punish offenses against the law of nations, piracy, and felonies committed on the high seas, as well as the powers to authorize an army, navy, and militia and to make rules for the regulation of land and naval forces. Congress therefore has concurrent authority and substantial practical influence over all aspects of foreign affairs. Notwithstanding this authority, the President dominates foreign affairs. Yet the Constitution delegates relatively few foreign relations powers to the President, and several of these powers are shared with the Senate or Congress. The President has the power to make treaties and appoint ambassadors, but only with the participation of the Senate. His power as commander-in-chief is subject to limitation by the congressional war, legislative, and appropriations powers. The President has the power to receive ambassadors, the duty (and implicitly the power) to take care that laws (including treaties and customary international law) be faithfully executed, and a general executive power. But executive prerogative rests more on historical practice and functional necessity than on constitutional text.

Much of the President's dominance of foreign affairs is based on extralegal factors, such as access to the media and political party status. Most presidential foreign affairs authority derives from congressional support. For example, Congress has delegated to the President plenary authority over foreign commerce. It has also authorized and funded a standing armed force, a vast intelligence bureaucracy, and dozens of agencies with thousands of officials participating in all facets of international organization and activities. Having created the bureaucracies, Congress has generally been content to let the executive run them. Executive prerogative has historically sanctioned the President's right to recognize foreign states and governments, establish diplomatic relations, initiate negotiations, determine the content of communications with foreign governments, conduct intelligence operations, conclude presidential executive agreements, and initiate military action.

Executive prerogative has been controversial since the first administration of george washington. After Washington declared neutrality in 1793 in the war between France and Great Britain, alexander hamilton and james madison debated his authority under the pseudonyms Pacificus and Helvidius. The structure of the debate, and even the arguments advanced, have been used repeatedly in foreign policy clashes between the President and Congress, most recently in the iran-contra affair. The Washington declaration amounted to a decision not to declare war and implicitly interpreted a treaty with France not to require U.S. entry into the war.

Madison rejected Washington's authority to issue the declaration because in his view neutrality pertained to declaration of war, a congressional power, and to the application of a treaty, a power shared with the Senate. Madison viewed constitutional powers as strictly separated so that any activity within the scope of a legislative power was precluded to the President. He also advocated a narrow construction of the executive power and other presidential authorities specified in the constitutional text. In Madison's view, the President could only execute laws and policies established by Congress.

Hamilton took a broad view of the executive power, arguing that its scope was limited only by explicit exceptions such as Senate participation in treaty making and congressional power to declare war. Thus, the President could preserve peace until Congress declared war. As the "organ of intercourse" between the United States and foreign nations, the President could make, interpret, suspend, and terminate treaties; recognize foreign governments; and execute the laws of nations (including the law of neutrality). In Hamilton's view, the President shared power with the legislature in war and treaty making.

Washington established other important precedents supporting presidential foreign affairs power. He authorized military actions against american indians without congressional authorization and dispatched an envoy without Senate approval. He also asserted executive privilege against both the Senate and Congress to protect treaty-negotiating instructions, and he effectively eliminated the Senate's "advice" function in treaty making. Other early Presidents also established major precedents justifying presidential foreign affairs power. john adams initiated presidential executive agreements. thomas jefferson committed funds to purchase military supplies without an appropriation and dispatched the navy to protect U.S. vessels against pirates off Africa.

Since then, presidential authority has fluctuated with the strength of particular Presidents and the exigencies of the moment, depending on what the President has claimed and what the Congress has tolerated. The courts generally have declined to adjudicate these controversies. On the few occasions when the Supreme Court has addressed questions of presidential power, it has almost always sided with the President.

In a much-quoted passage, Justice george sutherland, in united states v. curtiss-wright export corp. (1936), referred to "the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations." Sutherland explained that "[t]he President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it." Sutherland offered a functional explanation: "if, in the maintenance of our international relations, embarrassment … is to be avoided and success for our aims achieved, congressional legislation … must often accord to the President a degree of discretion and freedom.… [H]e, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries.… He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results.…"

In Chicago and Southern Air Lines v. Waterman S. S. Corp. (1948) Justice robert h. jackson, after noting the importance of secret intelligence in executive decision making, added: "[T]he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political department of the government.… They are delicate, complex and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry."

In youngstown sheet tube co. V. sawyer (1952), however, the Court denied an executive emergency power to seize steel mills during the korean war. The determinative factor was that Congress had earlier declined to give the President such authority. Jackson's concurring opinion, which is now the standard framework for analysis, held that the President's authority is maximum when exercised pursuant to express or implied congressional authorization, but is "at its lowest ebb" when exercised contrary to the express or implied will of Congress. Jackson recognized a "zone of twilight" where there is neither a grant nor a denial of presidential authority. The branches then have concurrent authority, and "Congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable if not invite, measure on independent presidential responsibility." In dames & moore v. regan (1981) the Court upheld a presidential executive agreement eliminating causes of action in federal courts for claims against foreign governments, contrary to a statute conferring jurisdiction over such cases, on the basis of congressional acquiescence to earlier executive agreements dealing with such claims. Presidents have also negotiated export restraint measures covering steel and automobiles at odds with the antitrust laws, and Congress has acquiesced.

In the absence of much judicial guidance, presidential foreign affairs power has been shaped by political compromises between Congress and the President. Almost all exercises of presidential power, including politically controversial ones, have the sanction of congressional acquiescence.

Executive prerogative builds on the negotiation function. Everyone agrees that the President has exclusive authority to recognize foreign states and governments, establish diplomatic relations, and control official communications with foreign governments. The President declares foreign policy, although important declarations like the monroe doctrine or support for the African National Congress typically require congressional action to be effective. Executive branch officials, with congressional acquiescence, have also construed executive prerogative to include the right to preserve confidentiality of diplomatic communications and related executive deliberations.

The President may negotiate an international agreement on any subject matter. He decides whether to conclude it on the basis of Article II or the constitutionally equivalent procedure of authorization by Congress. He may conclude some international agreements without any congressional participation. These agreements have sometimes been controversial, but the Supreme Court has approved. In united states v. belmont (1937) and united states v. pink (1942), the Court upheld an executive agreement that superseded state law. In Dames & Moore v. Regan (1981) the Court upheld an executive agreement inconsistent with a federal statute. After the vietnam war and watergate, the President fended off congressional attempts to regulate executive agreements. The President may also interpret, suspend, and terminate Article II treaties without Senate participation.

The most controversial aspect of executive prerogative concerns the presidential war power. This authority rests in part on the commander-in-chief clause and in part on congressional authorization of military forces and acquiescence in their use. Since world war ii, the President has frequently initiated military activities without a congressional declaration of war. Examples include military actions in Korea, the Dominican Republic, Lebanon, Grenada, the Persian Gulf, and Panama. During the Vietnam War, Congress challenged the President, passing the War Powers Resolution over the President's veto. Subsequent presidents disregarded its major limitation, sending troops to the Middle East, Asia, Africa, and Latin America. Some members of Congress complained, but Congress acquiesced to presidential military action, at least for limited purposes. Executive branch officials have also claimed constitutionally based authority to initiate covert intelligence operations.

Only rarely has a President acted contrary to congressional prohibition. In some contexts, however, functional theory and historical practice constitutionally justify such action, whether as an emergency power or, under contemporary theory, as a synergistic product of the textual powers of the President. One cannot anticipate the contexts in which such action may be required, and it is therefore difficult to define rules in principled terms. The prospect for congressional acquiescence seems crucial. The President does not have a general power to override acts of Congress for foreign-policy purposes. Nevertheless, the foreign relations power may justify action inconsistent with acts of Congress when foreign policy urgency requires and Congress seems likely to acquiesce. Presidential exercise of power is subject to congressional review to weigh the genuineness of the urgency and wisdom of the action. If Congress disagrees, it can repudiate the President formally. Congressional action in response to assertions of presidential prerogative should in turn prevail and constitutional lawmaking continue.

Phillip R. Trimble
(1992)