The Problem of Prerogative: A Response to Benjamin Kleinerman

Earlier today, I posted a thoughtful essay by Benjamin Kleinerman arguing with respect to Eric Holder’s recent testimony on domestic drone strikes that, “as obvious as the targeting of American citizens might be in [the most] extraordinary situations, it does not necessarily follow that the President should have the legal authority to conduct these strikes.” Writes Kleinerman:

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.

I am generally sympathetic to Kleinerman’s position about prerogative power---which is that we have lost sight in our modern legalism of an important strain of thought about how to manage the executive. But I think Holder’s position about killing Americans domestically is a bad example of his point. The reason, simply put, is that I don’t think there’s anything remarkable about the legal claim that the president has inherent power to defend the country from imminent, much less unfolding, attack, and that this power is not really subject to regulation. I would go further: even individuals who are not president have a certain legal entitlement to act with lethal force to prevent imminent harms to themselves or others. Forget about the drone attack on the guy with a bazooka pointed at the White House; the cop who draws his sidearm and shoots this person dead would be acting well within his authority. The non-cop who did the same would not face legal consequences either, and it wouldn’t be some notion of prerogative that protected him or her. We do not think of the citizens who (presumably violently) forced down one of the aircraft on 9/11 as people acting in violation of the law, though forgivably so. We think of them as acting heroically, and lawfully, in defense of others. The president has greater, not lesser, legal authority to act in defense of the country than does a cop on the street or mere citizens on a plane. And while I agree with Kleinerman that presidential extra-legal action defended politically has an honorable history and can, in some instances, reduce the incentive to warp the law, the law itself seems to me easily to encompass the examples Holder and Kleinerman both offer.