October's Liberty Forum on Congressional power to define the substance of the 14th Amendment is now available and features essays from Joshua Hawley, Kurt Lash, and John Harrison. Losing the gun in Canada: Pierre Lemieux reviews Arming and Disarming: A History of Gun Control in Canada in our feature Books essay this week. Bart Wilson @Econ Lib: What's wrong with utilitarian behavioral economics? Daniel McCarthy on John Locke's colonial capitalism: Liberal, Libertarian, or License. Mollie Hemingway: Can We Finally Start Talking About the Global Persecution of Christians? Daniel Mitchell on October 3rd, 1913 as the worst day in American history. The Unwinding: Reviewing George Packer's account…
Archives for October 2013
(In my first post, I discussed the nature of the prerogative power. Here I discuss whether it exists under the Constitution.)
If one were to find a presidential prerogative in the Constitution, where would it be located? Perhaps the most common answer is that the it is given to the President in the Executive Power Vesting Clause. While I believe that the Clause does provide substantive powers to the President, I don’t think it gives the President a prerogative.
There is a significant dispute as to whether the Executive Power Vesting Clause provides powers to the President. The argument for concluding that the Clause provides powers involves a comparison of the Executive and Legislative Vesting Clauses. The latter provides that “All legislative Powers herein granted shall be vested in a Congress of the United States.” The former provides that “The executive Power shall be vested in a President of the United States.” While the legislative power is limited to the list of powers conferred on the Congress, the executive power is not.
Under this reading, the Constitution confers all of the traditional executive powers on the President that it does not either give to the Congress (such as the power to Declare War, which the King of England traditionally had) or limit (such as the power to appoint executive officers, which the Kind had alone, but which the Constitution gives to the President along with the Senate).
The alternative reading views the President’s powers as limited to the list of powers listed in Article II, such as the Pardon Power and the Commander in Chief Power. It views the herein granted language of the Legislative Vesting Clause as simply about denying to Congress powers that the state legislatures enjoyed, based on federalism concerns.
Rémi Brague, professor emeritus at the Sorbonne, and the subject of a post I wrote on the complicated western history of the Law of God, argues in a recent essay “The Impossibility of Secular Society” (paywall) that secular society is a doomed enterprise for two reasons: a secular society cannot survive in the long run, so moving on from it will be a choice to live, and the very concept of secular society is tautological “because secularity is latent within the modern use of the term society.” Brague also asserts a 1/2 thesis that whatever comes next in the West, it won’t be a “society” but a new mode of “being-together.” This mini-me thesis itself seems redundant. If the present society fails to inspire loyalty and provide convincing rationales for our “being-together,” then something new will surely replace it. But this might be the most interesting key to the essay. I’ll return to this thought at the end.
While much of the government is closing down, the U.S. Supreme Court (Motto: “The Functional Branch of Government”) has convened for its October 2013 Term. This past Monday, there were eight new cert grants (Lyle Denniston has them here). Total snoozers unless you happen to be an IP lawyer (especially one with a keen interest in the latest spats between Judge Posner and the Federal Circuit). That’s par for the course: upon re-convening, the justices motor through the stuff that’s accumulated over the summer, grant a few easy ones, and deny a ton (that’ll be this coming Monday’s mile-long Order List).…
I recently was at a Liberty Fund Conference where the issue of whether the President – in particular, Abraham Lincoln – enjoyed a prerogative. Some of the other participants argued that the President possessed a prerogative. My basic position is that the President does not have this power, but that he possesses a substitute which can serve the same function in a superior way. I plan to address this question in three related posts.
In the Second Treatise, John Locke describes the prerogative as:
This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm, if they are executed with an inflexible rigour, on all occasions, and upon all persons that may come in their way; therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe.
One set of questions involving the prerogative is whether it is legal, illegal, or some how distinct from the question of law. That is, does the Constitution legally authorize the violation of other laws in special circumstances? Or does the Constitution require the President to follow such laws, in which case his prerogative actions are illegal. Or finally is the prerogative somehow distinct from the Constitution and laws in some unspecified way?
Having risen to a record of 3-1 in my fantasy football league on the strength of an opponent who forgot to set his lineup, I have repudiated last season’s view that this is a child’s diversion that does not matter to serious people. I will, however, reserve the right to advert to that perspective when I play our league’s commissioner next week given the fact that he obviously rigged our autodraft, which I am quite certain he did, since there is no way he just happened to wind up with Peyton Manning and the Seattle defense on the same roster, but I digress. The point of these reflections is that fantasy football is not merely unjust—if, that is, I lose—but also destructive of the legitimate ends of the polity: It entails the erosion of particular ties of kinsmanship and loyalty in favor of an egoistic and anonymous individualism freed from bonds of patrie and blood.