George Mason Law School

Lecture centers on extensive presidential powers

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October 28, 2010

11:53 PM

Thomas Jefferson thought the U.S. Constitution created a monarchy. Not one with thrones, carriage rides, crowns, robes and bad teeth, but one with legitimate power to make the president the head of a limited constitutional monarchy. University of Virginia professor of law Saikrishna Prakash discussed Jefferson’s observations in a lecture delivered at the College of William and Mary’s Marshall-Wythe School of Law Tuesday.

The presentation, titled “The Overly Energetic Executive: Congress, the Courts and the President,” centered around three questions: Is the United States presidency a monarchy? Does the president have emergency powers? Does President Barack Obama have the right to end ‘Don’t ask, Don’t Tell’?

Prakash opened with the monarchy issue by questioning the intention of the Constitution.

“The argument is stacked against the notion that the Constitution creates a monarchy,” Prakash said. “But I want to suggest the answer is far from obvious. Thomas Jefferson and John Adams thought it [created] a limited constitutional monarchy.”

Anti-federalists argued that the president would be an elected king, to which Prakash argued that the qualifier ‘elected’ indicates a sense of inferiority.

“If you are going to have a monarchy, you should have a hereditary one,” he said. “Elected ones are riddled with corruption.”

Prakash completed his argument by saying that in a hereditary system, there is more much incentive for the ruler to pass down a workable, corruption-free system.

However, Prakash stopped short of saying the presidency is a monarchy, despite powers like the ability to veto or to pardon.

“The imperial presidency is not a perversion of the Constitution. It is just a consequence of it,” he said.

Prakash’s opinion on the emergency powers of the president was the shortest portion of his presentation, focusing on how early executives utterly lacked emergency power.

According to Prakash, two schools of thought, the Abraham Lincoln and John Locke approach and the Franklin Roosevelt and William Blackstone approach, dominate the theory of emergency powers. Lincoln felt that, as president, he could do whatever he wanted to save the country, while Roosevelt felt he could do whatever necessary, as long as it did not violate any legislation.

Prakash did not provide a concise conclusion on current-day emergency powers. He did, however, concede that the powers have grown since the early years of the United States.

The final portion of the lecture focused on whether a president has to enforce statutes which he believes are unconstitutional. Prakash used Obama’s belief that the DADT policy is unconstitutional as an example.

“Defending the statute you think is unconstitutional, is in fact unconstitutional,” Prakash said of the president.

However, Prakash said that Obama’s maneuvers tip his cap to the U.S. judiciary system.

“If [a president] concedes, there will often be no challenge,” he said. “This means that it won’t ever be decided by the courts. If you defend, it allows the courts to weigh in.”

Prakash finished the lecture by answering questions. This was his second presentation at the Law School.

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