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Exercise of Prerogative Powers Term Paper

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Updated: Jun 14th, 2019

Introduction

John Lock in his works the two treaties of government examines how prerogative powers are exercised; the powers have social impacts to the lives of people making them to be constitutional (Cook 205). They are applied in resolving emergencies; they are natural and superior to the constitution. The prerogative powers do not coexist with constitutional powers since the constitution is more liberal in decision making and more encompassing.

For emergence to be declared, the provisions of the law must be weakened by suspension. Scholars and policy makers have been applying the ideas of John Lock contained in the two treaties of government to solve urgent problems that affect society from time to time.

Lock’s idea that the natural law is supreme than human law allows the president to make decisions that he/she believes will solve the immediate problems (Fatovic 278). This paper examines whether or not the Bush and Obama policies can properly be described as “prerogative.” This has generated heated debate since the 9/11 attack.

The war on terrorism requires extra-ordinary measures that do not rely on the constitution. The legality of prerogative powers favors the government in foreign policy formulation that is why the leaders elected must be accountable and trusted with leadership. The government holds delegated authority. Corbet argues that any individual or organization does not pressurize the president to perform or not perform some functions only the electorate tames the president, people monitor the application of prerogative powers (Corbet 430).

Basis of Political Authority

Individuals in society exist singly; everyone is punished individually. This is different in political world since the policy of collective responsibility is applied in judgment. The individuals are therefore controlled by the common wealth that makes policies for them.

Members of a particular society surrender their sovereignty to one authority that has authority over jurisdiction of the territory. Members of society surrender powers that are inconsistent with political authority, the only right retained are the powers to disagree with the authority. The common authority does not handle the surrendered power carelessly instead, the views of the majority must be considered (Corbet 431).

Lock suggests strongly that the rule by law is not enough for achieving political victory. The legislature sometimes is not focused and prepared to make urgent decisions. The constitution might be operating under hostile conditions that do not allow flexibility, the executive needs to be making extreme conditions to salvage the state.

The executive, by having the power in hands has the common law of nature meaning it has a right of making use of them for the betterment of society. The constitution does not allow people to declare emergency because individual interests would prevail. The president as a leader of a political system has the power of society and the natural law authenticate him to apply where necessary (Corbet 433).

Lock’s Theory of Prerogative

Prerogative powers are important in obtaining the most basic duties of government including maintaining the society due to uncertainties. Reliance on the constitution makes it difficult to fulfill governmental duties. Prerogative powers reinforce the principles of what are considered legal since it allows the president to apply extra-ordinary powers in accordance with the natural law.

Locke allowed and endorsed the use of higher discretion in countering contingencies in the state. Locke led a revolution against autocracy exercised by Stuart monarchs because they misused the powers by pinning down the legislature. It therefore follows that the powers should not be used to benefit an individual.

The theory is understood to be a response to unavoidable and uncontainable contingency of politics. He identified the negative effects of the rule by law when placed too closely with freedom. For Locke, both the constitution and prerogative powers have the aim of achieving the public good and the laws of nature.

He understood prerogative as the extra-legal ways of enhancing the needs that the law aims at achieving, it gives chance to the executive to attain fallible constitutional orders into conformity with the targets it has. The powers repay the weaknesses of the law without doing away with the tenets of the law.

He was not intending to disorganize the government by handing more powers to one arm but he wanted the executive to utilize the powers to benefit society. The governmental powers originate from the rights of individuals in the state of nature. It is in line with the need to punish the violators for the sake of both individuals and collective preservation (Fatovic 280).

Constitutional Frame in Lock’s Second Treatise

Presidential powers have been growing rapidly which is being viewed as a threat to the constitution. The powers are responsible for the success of the presidents in their leadership. The constitution allows the exercise of freedom and avoids the worries about arbitration; this is also the interest and target of the discretionary executive powers.

The founding fathers of liberal constitutionalism included prerogative powers in the structure of government hence Lock was not the first one to discuss the powers (Kleinerman 210). The resistance by people controls the executive against misusing the prerogative powers. Locke suggested that people must rise up to resist the use of powers in situations where it is not intended to achieve national interests.

The powers granted to executive in the past are not the same as those granted in the modern political world this is because of the human development. Governments have grown from simple to complex so is the institutions including the constitution. This suggestion shows maturity and rationalism in leadership. The primitive monarchies aught to be interpreted, the people preferred it when only exercised carefully with love (Kleinerman 212).

American Foreign Policy and September 11 Attack

The 9/11 attack changed American foreign policy in many ways be it economical or political, this is because of the flexibility of the constitution. It follows that the United States does not have a rigid foreign policy as compared to other states in the world. Foreign policies cannot be fixed because of the changing nature of international problems.

Today we may be faced with economic problems, tomorrow may be terrorism and the other day will be social problems. The incoming presidents introduce new policies that serve to strengthen their administration and solve the problems at hand (Howard 5). The major changes to the policies were witnessed after the attack on the world trade center. It started with declaring war on terrorism since it had proved to be an international security threat (Cakmak 2).

Terrorists for the first time received pride in the international system since they were being talked of everywhere. The existing strategies were declared irrelevant since they had failed to prevent terrorism.

The government came up with new policies that were believed to be effective and efficient meaning- without loopholes for terrorists. The United States revisited the multilateral agreement that stated that in case one state is attacked, it would be assumed that all have been attacked. It was categorical that it would act alone since it was a matter of self-defense.

The government acted alone since it was interested in strengthening its status in the international system. It wanted to show that it was able and is still the world’s superpower. However, it did not rule out the possibility of involving other states in retaliation against terrorism. The act of going for it alone and inviting others to join you forcefully shows the hegemony of the United States foreign policies after the 9/11(Cakmak 4).

Reasons for Revising the Foreign Policy

Collapse of the Soviet Union handed over opportunities to the American government. It means that the demise of USSR opened new challenges to the United States. It has taken over control of the economy and political/military power of the world with the help of its allies in Europe.

The United States revised most of its policies immediately it took over the control of world affairs. Some regions, because of their strategic locations are of high interest to the United States. These regions include Afghanistan, which has been a major target to subsequent governments of the United States (Jeremy 61).

By taking over Afghanistan, the United States could benefit in two ways. It could be in possession and control of oil and other natural gas resource that are abundant in Afghanistan. Another reason is that the United States could access most of the Middle East states, which are believed to be hosting terrorists.

Middle East countries are known to be hosting terrorists by providing information and training to them. For the benefit of American people and the rest of the world, the United States had to invade Afghanistan to flush out terrorists and their supporters (Gokay 55).

Role of the President in Foreign Policy Formulation

The state department for foreign affairs falls directly under the presidency. The constitution spells out clearly the powers of the president, which include shaping the foreign image of the country (Langston and Lind 52). The powers to declare war or state of emergency are the prowess of the presidency (Relyea 56). It is therefore expected that the president appoint the most qualified personnel to the positions of foreign offices.

States superiority in the international system is determined by how best it can handle matters of international concern. Policies at times of crisis such as terrorism should be made swiftly or unilaterally the way ‘Lockean prerogative’ thoughts suggest. In other words, the executive powers granted to the president by the constitution should be utilized whenever there are difficulties or opportunities (Moran and Strawn 321). These powers are meant to bring victory to the state when they are applied appropriately.

Presidential powers have been expanding since independence in the United States. The presidential actions depend on the loyalty of party supporters both in government and outside government. The president is able to appoint loyal agents to various state institutions only if there is no party polarization (Gray 29).

Party polarization causes the president to strain in offering full service to citizens. The president should be in a position to influence internal affairs since it gives him/her the needed support to influence international matters. The views of Lock on prerogative powers were employed in making foreign policies after the 9/11 attack (Sturm 126).

National Emergency Powers

The law gives the president various powers to apply in times of crisis such as emergencies pertaining war or disasters. Some are well documented in the constitution while others are derived from the statutory laws. The president need not necessarily follow a certain criteria in applying them since they are readily available. Other laws exist on standby to provide the president the necessary executive powers.

The president therefore does not have limitations in terms of law in solving state crisis. To make the situation more interesting, the statutes allow the president to re-posses individual property, send troops in foreign land arrange the ways of productions, capture commodities, control communication and transportation, regulate privatization of property, barn all forms of travels by seizing visas and supervise the life of a citizen (Relyea 2).

Origin of Executive Power

It started with political thinkers such as John Lock who argued that in times of crisis the executive must rise up to the occasion to salvage the people from the said need. The executive exercises such powers only if the normal law is unable to handle the problem. The aim of applying executive powers is to achieve national interests. The usage of executive powers first came in practice in1775 when the continental congress passed a series of acts (Rossiter 225).

They were applied to solve the problems associated with revolutionary war. It was applied to provide defense and general welfare to the citizens. Whenever emergencies cripple, presidents have been interpreting the law basing on the past, which provide for creation of emergency policies to bring normalcy to the state. The emergency actions taken by presidents are assumed to be constitutionally permissible; they depend on his views/perspectives (Relyea 5).

President Roosevelt in his views claimed that nothing was forbidden constitutionally as long as it aims at bringing relieve to the citizen. The president had unlimited powers to apply in controlling the state since he/she is people is chosen. The president represents the public good hence no need of restricting him from doing whatever he/she thinks will solve a particular problem at hand. Roosevelt further argued that it was the duty and responsibility of the president to ensure that stability of the state is achieved (Caruso 76).

To do this, he/she employs various techniques including using force and even treachery to make others with divergent views to comply. Therefore, emergency powers are not only obtained from the constitution but also from personal conception of the incumbent of the office of presidency. It all depends with how he/she will interpret the urgent issue. It is eminent that apart from the official powers, there are other laws that have temporary duration, their application depend on the office holder (Fatovic 294).

The Concept of Emergency

Many scholars have forwarded their understanding concerning emergency such as unforeseen combination of circumstances. Many view it as an urgency resulting from public calamity such as fire, flood and even war. For a disaster to be termed as urgent, it has to contain temporal character such as sudden, unpredictable and not estimated in terms of duration.

If it threatens life and general well-being of the society then it is urgent and emergency powers should be pulled to contain the situation. If the matter serves to threaten national security or is suspected to be dividing the government, then urgent and executive powers should be sought to rectify the case (Relyea 4). The response at which a particular issue should be given may prompt it to be an emergency.

National Emergencies Act

A committee in 1974 recommended establishment of a process that could be followed by the president in declaring emergency. It went a step further in modifying the existing policies while establishing others and doing away with some. The results of the committee were all inclusive since everyone’s views were included.

The committee further recommended that the government needed to investigate emergency preparedness and make all efforts to put the relevant authorities in stand-by. The laws pertaining emergency powers were to be reviewed regularly to close any available loophole. The powers concerning emergency were not supposed to be delegated but only in strict conditions (Relyea 11).

The executive needed to be accountable when making urgent decisions especially those concerning war. Many enactments of national emergencies have been made since1990. They have been declared pursuant to their provisions in the constitution that allow the executive to undertake them. Others were revised, others done away with while some remained the same. Most of the policies were made at the time of need, they were meant to ensure compliance from other states as well as the citizens of the United States (Relyea 12).

The government in 9/11 attack had no option but to borrow from Lock’s ideas on prerogative. The president loses meaning and importance if he/she does not use all available resources to give hope to the subjects. People have to be protected because they are taxpayers.

Without the population, the state cannot manage to sustain its economy. President Bush had to make one of the hardest decisions by taking the United States in war with Afghanistan. The United Nations was not doing enough as far as disarmament of deadly states is concerned. People had been held hostage by terrorism; they lived in great fear not knowing whether their lives were secure.

Conclusion

The government officials have been inspired by the thoughts of John Lock for a long time. The foreign policy makers borrow heavily from the two treatise of government in Locks works. Lock’s ideas have generated heated debate both in government and among scholars. The proponents of the ideas of Lock argue that depending on legislature for urgent policies will delay the process of decision-making that might cause more suffering among citizens.

The ideas have been informing policies in both Bush and Obama administration. Terrorism is urgent because it causes loss of life and property. The majority need not to be consulted for solutions to be achieved. Critics on their side claim that at all times democracy must prevail. Prerogative powers are viewed as threat to liberalism.

Works Cited

Cakmak, Cenap. American Foreign Policy and September 11. May 2003. 18 Apr. 2011 <>

Caruso, Daniela. “Presidential Powers in the European Union,” B.U.L. Rev. 88.561. 2008. 71-95.

Cook, Thomas, Two Treatises of Government, by John Locke, New York: Hafner. 1947: 203-207.

Corbert, Ross. “The Extra-constitutionality of Lockean Prerogative,” The Review of Politics, 68. 2006: 428-448.

Fatovic, Clement. Constitutionalism and Contingency: Locke’s Theory of Prerogative. Imprint academic. 2010: 279-297.

Gokay, Bernard. (2002). The most dangerous game in the world: oil, war and U.S, Electronic version, Alternatives: Turkish Journal of International Relations, 1.2 2002: 47-68.

Gray, Adler. “The Constitution and Presidential Decision-marking: The Enduring Debate,” Political Science Quarterly 103. 1988: 1-36. Print.

Howard, David. After September 11: chances for a left foreign policy. 2010. 18 Apr. 2011 <>

Jeremy, Rabkin. The Fettered Presidency: Legal Constraints on the Executive Branch. Washington, DC: American Enterprise Institute. 1989.

Kleinerman, Benjamin. “Can the Prince Really Be Tamed? Executive Prerogative, Popular Apathy, and the Constitutional Frame in Locke’s Second Treatise,” American Political Science Review, 101.2 2007: 209-220.

Langston, Thomas and Lind, Michael. “John Locke & the Limits of Presidential Prerogative,” Polity, 24.1 1991. 49-69.

Moran, Stewart and Strawn, Benjamin. “Symposium: The Role of The President In The Twenty-First Century,” Boston University Law Review, 88.321 2008. 321-326.

Relyea, Harold. National emergency Powers. CRS Report for Congress, Congressional Reserve service.

Rossiter, Clinton. Constitutional Dictatorship, New York: Harcourt, Brace, and World, 1963: 225.

Sturm, Albert. “Emergencies and the Presidency,” Journal of Politics, 11. 1949. 125-126.

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