Extra-Legal Power and Legitimacy: Perspectives on Prerogative

253 Pages·2013·1.48 MB·English

by  Clement Fatovic, Benjamin A. Kleinerman

Extra-Legal Power and Legitimacy
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Extra-Legal Power and
Legitimacy
Perspectives on Prerogative
EDITED BY CLEMENT FATOVIC
and
BENJAMIN A. KLEINERMAN
1
1
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Library of Congress Cataloging-in-Publication Data
Extra-legal power and legitimacy : perspectives on prerogative / edited by Clement Fatovic,
Benjamin A. Kleinerman.
pages cm
Includes bibliographical references and index.
ISBN 978-0-19-996553-3 ((hardback) : alk. paper)
1. War and emergency powers—United States. 2. War and emergency powers. I. Fatovic,
Clement, 1973- editor of compilation. II. Kleinerman, Benjamin A., editor of compilation.
KF5060.E96 2013
352.23'50973—dc23
2013009683
9 8 7 6 5 4 3 2 1
Printed in the United States of America on acid-free paper
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CONTENTS

A cknowledgments vii
1. Introduction: Extra-Legal Measures and the
CHAPTER
Problem of Legitimacy
1
Clement Fatovic and Benjamin A. Kleinerman
EARLY FRAMEWORKS
PART I
2. Prerogative Power in Rome
CHAPTER 27
Nomi Claire Lazar
3. Violating Divine Law: Emergency Measures in
CHAPTER
Jewish Law
52
Oren   Gross
4. Lockean Prerogative: Productive Tensions
CHAPTER 75
Leonard C. Feldman
AMERICAN PERSPECTIVES
PART II
5. Th e Limits of Constitutional Government: Alexander
CHAPTER
Hamilton on Extraordinary Power and Executive
Discretion
97
George   Thomas
v
vi Contents
6. Th e Jeff ersonian Executive: More Energetic, More
CHAPTER
Responsible, and Less Stable
117
Jeremy D.   Bailey
7. Lincoln and Executive Power During the Civil
CHAPTER
War: A Case Study
139
Michael Kent   Curtis
PREROGATIVE IN CONTEMPORARY LIBERAL
PART III
DEMOCRACY
8. Filling the Void: Democratic Deliberation and the
CHAPTER
Legitimization of Extra-Legal Action
169
Clement Fatovic
9. Emergency Powers and Terrorism-Related
CHAPTER
Regulation Circa 2012: Perspectives on Prerogative
Power in the United States
198
Mark Tushnet
10. Th e Irrelevance of Prerogative Power, and the Evils
CHAPTER
of Secret Legal Interpretation
214
Jack Goldsmith
Index 233
ACKNOWLEDGMENTS

All scholarly projects benefi t from the support of others, but none relies as heavily
on the support and contributions of so many diff erent people as an edited volume.
Th is project originated at a panel on prerogative at the American Political Science
Association that was organized by Ross Corbett . Th e idea for an edited volume
that would explore diff erent approaches to extra-legal power in times of emergency
came from our discussant on that panel, Jeff rey Tulis. With Jeff ’s encouragement
and advice, we decided to organize a conference around the theme of prerogative
that would bring together scholars and practitioners from a variety of fi elds. We
were extremely fortunate to fi nd a receptive and gracious sponsor for this confer-
ence in the Lefrak Forum and the Symposium on Science, Reason, and Modern
Democracy at Michigan State University, which is directed by Steven Kautz, Arthur
Melzer, Jerry Weinberger, and Dick Zinman. Th eir generous support and hospital-
ity made it possible to hold the conference, “Perspectives on Prerogative,” over the
course of several invigorating days of intense yet enjoyable conversation on March
24–26, 2011. We are especially grateful to Steve Kautz, who was always there to
provide valuable advice and assistance every step of the way. We are also grateful to
Karen Batt in, Sarah Krause, and Kimberly Neir for their effi cient help in organizing
the conference. We are also thankful for the institutional support of James Madison
College at Michigan State University.
Th e conference and the papers that emerged from it benefi ted tremendously
from the probing comments and questions provided by all of those who partici-
pated as commentators, chairs, and discussants. We had fi rst-rate discussants in
Shikha Dalmia, Julian Davis Mortenson, Martin Lederman, Hugh Liebert, Folke
Lindahl, Svetozar Minkov, Benjamin Pollock, William Scheuerman, Jeff rey Tulis,
Seth Weinberger, Robert Young, and Mariah Zeisberg, who off ered incisive and
insightful feedback. Th e fi nal shape and coherence of this volume owes a great deal
to the contributions of these conference participants. We are also grateful to Kate
Gordy, Steven Kautz, and Ken Kersch for their advice on this volume.
vii
viii Acknowledgments
Beyond the conference, one of us, Benjamin, would also like to thank the James
Madison Program in American Ideals and Institutions at Princeton University. Th e
2012 Garwood fellowship provided the time and space necessary for editing and
improving this manuscript.
We are also indebted to the anonymous reviewer whose tough questions forced
us to hone this volume into a much more coherent and cohesive whole. At Oxford
University Press, we would like to thank both Michelle Lipinski for fi rst believing in
this project and Jennifer Gong for shepherding it to its successful conclusion. And,
fi nally, we would like to thank our friends and family, without whom none of this
would be possible.
1
C H A P T E R
Introduction: Extra-Legal Measures
and the Problem of Legitimacy

By Clement Fatovic and Benjamin A. Kleinerman
Th e terrorist att acks of September 11, 2001 (9/11), reawakened the United States
to a question that has always bedeviled constitutional governments: How does a
political system that aims to limit government power through writt en law exercise
the necessarily discretionary and potentially unlimited power that emergencies
sometimes seem to require? Th e threat of another terrorist att ack has dominated
debates over the need for emergency power, but many other types of events call
for responses that may exceed the legal limits placed on government. Emergencies
such as economic and fi nancial collapses, natural disasters, man-made environ-
mental catastrophes, epidemics, refugee crises, and internal rebellions also seem to
require the use of powers that would not be allowed or even contemplated in ordi-
nary circumstances. 1 Th is problem is particularly troublesome for constitutional
systems, which are designed to limit the arbitrariness of government by regulating
its behavior through stable and predictable laws. In so doing, constitutional gov-
ernments provide their citizens with an important measure of freedom, security,
and stability.
Th e trouble arises, however, if exigencies occur that require the government to
depart from existing law. An example from the terrorist att acks of 9/11 illustrates
the limits of the law. Aft er hijacked aircraft were fl own into the Twin Towers of the
World Trade Center and later into the Pentagon, the Federal Aviation Administration
(FAA) halted all air traffi c throughout the country for the fi rst time in American
1 Th ere are also more foreseeable crises looming on the horizon that could strain existing legal
and political arrangements. Although researchers have been warning of the potentially devastating
eff ects of climate change for decades, the prospect of large-scale coastal fl ooding, desertifi cation, and
the att endant displacement of millions of persons would undoubtedly lead to calls for the exercise of
emergency powers by governments around the world.
1