by Michael A. Genovese. Stanford: Stanford University Press, 2010. 216pp. Cloth $55.00. ISBN: 9780804762960. Paper $19.95. ISBN: 9780804762977.
Reviewed by Daniel Hoffman, Johnson C. Smith University, retired. Email: guayiya [at] bellsouth.net.
Michael Genovese, a scholar of the presidency, here presents a succinct and persuasive study of the doctrine of presidential prerogative (equivalent to the doctrine of inherent presidential powers), its history, and its efflorescence under the aegis of Bush and Cheney in the context of the war on terrorism.
Chapter 1 is a brief introduction, noting the stresses that crises impose on the normal operation of constitutional restraints, tempting presidents to take actions for which they lack explicit legal authority. Some see this claimed prerogative as grounded in the Constitution; others deem it extra-constitutional or even unconstitutional.
Chapter 2 traces the doctrine back to ancient Rome, where the Republic resorted to temporary dictatorships in times of crisis. Later, executive prerogative was zealously claimed by the Stuart monarchy in England, and, after the revolution, was still acknowledged by Locke in his Second Treatise, despite his emphasis that the people, not the king, are sovereign. Locke’s views were well-known to the American Founders, though the system they devised was significantly different from that advocated by Locke. (Compare the US Constitution with the one Locke drafted for the Carolina colony.) The relationship of prerogative to modern democratic theory is paradoxical, to say the least. Clinton Rossiter’s study, CONSTITUTIONAL DICTATORSHIP (2002), is introduced, and returned to repeatedly in later chapters.
Chapter 3, the longest, analyzes the intent of the framers regarding prerogative. Its thesis is that “the framers repudiated the English monarchy and with it monarchical prerogative. The new president was authorized to act only on the basis of law, and never against it” (p.43). Documents from the period, many quoted in full, establish this. However, the vagueness of Article II left presidential powers to be invented through practice, not theory, as strong presidents acted in response to perceived necessities or opportunities and others responded, often acceptingly, to their actions. “In effect, history has rewritten the Constitution” in the direction of “a more expansive view of presidential power” (p.53). The chapter concludes with a review of the debate over Washington’s Proclamation of Neutrality in 1793.
Chapter 4 carries the history forward, exploring the crises and presidential actions most significant to expanding presidential powers. Jefferson’s Louisiana purchase, Lincoln’s Civil War actions and those of FDR receive special attention. Also presented, and quoted at [*705] length, are the Supreme Court decisions in EX PARTE MILLIGAN, UNITED STATES v. CURTISS-WRIGHT EXPORT CORP., and YOUNGSTOWN SHEET AND TUBE CO. v. SAWYER.
Chapter 5 focuses on the G.W. Bush presidency and the extreme claims of prerogative it repeatedly advanced — “his bold assertion that the rule of law did not bind a president in time of war” (p.132). The Yoo/Bybee OLC memos and supporting arguments are reviewed in detail and powerfully critiqued. Of course, several Supreme Court decisions (e.g., HAMDI v. RUMSFELD (2004) and RASUL v. BUSH (2004)) have ruled that specific Bush actions were unlawful. The chapter also examines the concept of “precedent,” as it has been applied outside the judicial context, by invoking repeated presidential actions and claims of power as sources of law. Such rhetoric raises two questions: whether law can be created through repeated, illegal conduct; and whether it can be created by unilateral, self-serving claims that are not ratified by an impartial judge or by expressed interbranch consensus. The obvious answers are negative.
Chapter 6, the conclusion, emphasizes that, while prerogative may be here to stay, “all prerogatives are not equal” (p.164). Contrary to the Bush argument that exercises of prerogative are not reviewable, presidents “must submit [their] decisions to the mercy of Congress, the courts, and the public,” and all should be exacting, not lenient, in their judgments. (p.165). Genovese views with favor a set of safeguards that might be institutionalized, including the principles that only Congress may declare a state of emergency, that the emergency shall have strict time limits and be of short duration, that no presidential acts shall be kept from Congress, and that Congress may override any presidential action (p.170).
I find the main thrust of Genovese’s argument completely persuasive, though I came to the book already convinced that prerogative has no valid constitutional basis. He could, perhaps, have stated more clearly and directly that the Constitution provides three possible checks against presidential abuses: the powers of Congress (appropriations, oversight, and impeachment), judicial review, and the ballot; and that, for several reasons, including pervasive secrecy, the political party system, and the strength of militarism and hero-worship in our political culture, these checks have very seldom operated as advertised in THE FEDERALIST. My own work (GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS (1981) and OUR ELUSIVE CONSTITUTION (1997)) found these weaknesses very evident as early as the 1790s. Historical developments, including the spatially and temporally unbounded nature of the “war on terror,” have indeed aggravated the problem. Genovese insists that exercises of prerogative must be for the public good, but does not undertake to specify how we shall determine, for example, when war is for the public good. (Perhaps it is a truism of political science that if you must have an empire, you will have an emperor.) He might also have paid more attention to the civil liberties implications of the prerogative claim, as John Denvir does in FREEING SPEECH: THE CONSTITUTIONAL WAR OVER NATIONAL SECURITY (2010). [*706]
The book is quite readable, though one might quibble with the length of some quotes and with its organization, which jumps from historical episodes (not always in chronological order) to theoretical arguments, also not chronologically ordered. It is thoroughly documented, and suitable for courses on the presidency, constitutional theory, and special topics.
Denvir, John. FREEING SPEECH: THE CONSTITUTIONAL WAR OVER NATIONAL SECURITY. 2010. New York: New York University Press.
Hoffman, Daniel N. GOVERNMENTAL SECRECY AND THE FOUNDING FATHERS: A STUDY IN CONSTITUTIONAL CONTROLS. 1981. Westport: Greenwood Press.
Hoffman, Daniel N. OUR ELUSIVE CONSTITUTION. 1997. Albany: State University of New York Press.
Rossiter, Clinton. 2002. CONSTITUTIONAL DICTATORSHIP: CRISIS GOVERNMENT IN THE MODERN DEMOCRACIES. Rev. ed. New Brunswick: Transaction Publishers.
Rossiter, Clinton, ed. 1961. THE FEDERALIST PAPERS. New York: New American Library.
EX PARTE MILLIGAN, 71 U.S. 2 (1866).
HAMDI v. RUMSFELD, 542 U.S. 507 (2004).
RASUL v. BUSH, 542 U.S. 466 (2004).
UNITED STATES v. CURTISS-WRIGHT EXPORT CORP., 299 U.S. 304 (1936).
YOUNGSTOWN SHEET AND TUBE CO. v. SAWYER, 343 U.S. 579 (1952).
© Copyright 2010 by the author, Daniel Hoffman.