For out look at the U.S. Constitution.
- Click here for the article.
Is the president a king? The question may sound absurd, but you’d be surprised: A great many lawyers, politicians, judges, and policy experts think the U.S. Constitution builds from exactly that starting point. Their argument relies on the first sentence of Article II, which gives the president “the executive power.” That phrase, they claim, was originally understood as a generic reference to monarchical authority. This means, they say, that the American president must have been given all the prerogatives of a British king, except where the Constitution specifies otherwise. The foreign-relations scholar Philip Trimble states their conclusion plainly: “Unless the [Article II] Vesting Clause is meaningless, it incorporates the unallocated parts of Royal Prerogative.”
The repercussions of this claim ripple across the face of constitutional law. During Senate hearings on legislating an end to the Iraq War, Brad Berenson, who had served as one of President George W. Bush’s top lawyers, told the Senate that the executive-power clause conveys “a vast reserve of implied authority to do whatever may be necessary in executing the laws and governing the nation.” When the Bush administration wanted to defy statutory restrictions on dragnet surveillance, the Justice Department relied on the clause in advising that Congress “cannot restrict the President’s ability to engage in warrantless searches that protect the national security.” And Justice Clarence Thomas put the clause front and center in concluding that “those who ratified the Constitution understood the ‘executive Power’ vested by Article II to include those foreign affairs powers not otherwise allocated in the Constitution.”
These aren’t selective examples. Pick a random recent controversy about presidential power, and you’re almost certain to find the president-as-king claim woven into the debates. During the George W. Bush administration, the argument was used to defend the torture of prisoners, the evasion of habeas corpus, and the claim of authority to invade Afghanistan and Iraq without congressional authorization. During the Obama administration, the argument surfaced in debates about the administration’s defiance of a statute recognizing Jerusalem as the capital of Israel and about the use of force against Libya. And supporters of the Trump administration have supercharged the claim, advocating a breathtaking theory of indefeasible imperial prerogative in areas ranging from the Russia investigation and workaday congressional oversight to immigration law and the bombing of Syria.
