The Implied Powers Presidency

• In Event: Legal Doctrines and Their Political Effects

Abstract

I build a theory of the president’s implied powers in foreign and domestic emergencies by looking to the eighteenth century understandings of executive power as it related to war, invasions, insurrections, and domestic violence that threatened national security. While existing theories turn to John Locke's theory of prerogative, my projects seeks to remedy the deficiencies in our constitutional understanding of executive power by recovering the more narrow theories of executive power by Baron de Montesquieu, William Blackstone, and David Hume, each of which were formative in debates in the early republic about the presidency. From this theory, I argue that the presidency only possesses limited, defensive prerogative powers through its share of constitutional authority. Existing theories of statutory discretion, inherent prerogative powers, and extra-constitutional prerogative fail to identify how the president may legitimately exercise implied powers in the case of a sudden attack or national security emergency.

I will argue that historically, presidents have exercised defensive prerogative power from inside the Constitution in the realm of foreign affairs in response to sudden attacks. The Lockean theory, by contrast, argues the president may act extra-constitutionally, both outside and against statutory and constitutional limits. This theory is inconsistent with the text, history, and structure of the Constitution. The Constitution's ambiguity on matters of institutional authority, the balance of concurrent powers, and the historically meaning of these types of emergencies leads to contested interpretations of the type of executive power that underpin the president legal and moral obligations. These ambiguities shape the dynamics of executive authority as it relates to war and national security emergencies.

Author

• Garrett Jeffrey Jones, University of Wisconsin-Madison