Benjamin Kleinerman on "The Politics of Prerogative"

Benjamin Kleinerman of Michigan State University, one of the most interesting political theorists to write in the Lawfare-space, sent me the following thoughts on prerogative and killing Americans domestically. This is a subject Kleinerman treated at length in his book, The Discretionary President, which I highly recommend; along with a co-author, Clement Fatovic, he also has a forthcoming edited volume from Oxford University Press, Extra-Legal Power and Legitimacy: Perspectives on Prerogative.  I actually disagree with his point here, for reasons I will explain in a separate post. But for now, I thought I would simply put it out there on its own.

The Politics of Prerogative 

Eric Holder’s increasingly strained verbal gymnastics in his recent testimony before Congress points once again to what we had already seen in the Bush administration. In order to accommodate the need for extraordinary power in extraordinary situations, we need a politics of prerogative or extra-legal action. Answering questions about the legality of the President’s drones program, Holder suggested that the President’s commander-in-chief power would allow him to target American citizens on American soil.  Going further, when asked about a hypothetical bill prohibiting POTUS from using lethal force on American soil, Holder said: “I’m not sure that such a bill would be constitutional.  It might run contrary to the Article II powers that the President has.” As extraordinary and frightening as Holder’s argument sounded, it does follow logically from the President’s primary constitutional responsibility for maintaining national security.  If, as one of the Senators asked, a man was actually pointing a bazooka at the Pentagon, it does in fact follow that the President could and should kill that man before that attack occurred.  So too, as in Holder’s example, if the President could have preemptively targeted certain people, including American citizens, in order to prevent Pearl Harbor or the 9/11 attacks, we would have to view such targeting as both acceptable and even commendable. But, as obvious as the targeting of American citizens might be in these extraordinary situations, it does not necessarily follow that the President should have the legal authority to conduct these strikes.  The father of liberal constitutionalism, John Locke, recognized that the laws must be supplemented by what he called a prerogative power, which is a “power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it.” As frightening as this “prerogative” power might sound, Locke recognized its necessity precisely so as to avoid the kind of verbal and legal gymnastics we saw in Holder’s testimony.  The laws cannot and should not anticipate and provide for all actions that might need to be done for the sake of national security. As necessary as it might be to shoot a man before he shoots a bazooka at the White House, it would be inadvisable to allow the President to shoot dangerous men merely because of that necessity.  Instead, the notion of prerogative preserves the possibility of exceptional action without forcing us to destroy the laws so as to do so.  We judge the president’s action politically precisely because we cannot and should not judge it legally.  And, again, as dangerous and unwise as it might sound to contemplate the possibility of president’s acting either extra-legally or illegally, it would be better for the law itself if we understood them as having the capability to do so.  Where Holder wants to invert the law such that it is not only inadvisable but even unconstitutional for Congress to tell presidents they cannot kill American citizens on American soil, the politics of prerogative would allow us to preserve a sane notion of law while still allowing presidents to shoot men holding bazookas at national monuments. Of course,  the politics of prerogative does not answer some of the questions that plague us in the “war on terror.”  For instance, can we or should we target and kill dangerous men who are not yet holding the bazooka but who are likely to do so in the future?  But, while it does not answer this question, it does establish that the questions must be answered politically rather than legally.