Prudence, by Piero del Pollaiuolo (HT)

Lots of digital ink being spilled over Obama once again “fixing” (i.e. altering) the law simply by decreeing that it shall be so. He does this a lot, and his critics are right that this is an essentially monarchical exercise of power. As Montesquieu argued, the essence of monarchical and aristocratic government is the discretion of the rulers to act differently in different cases, both because they are trusted to do so (that is the presupposition of this type of government, after all) and because they are restrained by a predominant “spirit of honor” in the culture, which limits the socially acceptable exercise of their discretionary powers. By contrast, the essence of democratic and republican government is precisely the expectation that officials will not have a broad latitude to judge what justice requires in each case; to preserve the nature of this type of government they must make decisions in accordance with fixed, stable and transparent rules. This is made possible because a “spirit of virtue” in the culture restrains public behavior sufficiently that officials need not exercise moral formation over the public quite so proactively. In the one case officials are moral tutors to the public; in the latter case the public is the moral tutor of the officials.

But it does not therefore follow that all such acts are wrong case by case, even in our republican government. In fact, government officials informally rewrite the law every day through the way they interpret and apply the law; in a surprising number of these cases they actually avoid doing what the law plainly requires, simply because doing what the law requires in that particular case would be dumb. And far from being challenged, when the result of these decisions is that dumb applications of the law are avoided, people praise the officials for their “common sense.”

John Locke – who was nobody’s squish when it comes to watching like a hawk against abuses of executive authority – makes a powerful case for this discretion, which he calls “prerogative power.” In fact, the written law cannot anticipate every exigency. Rigid enforcement of the law without prerogative tends to create dysfunctional systems of behavior that grow over time, ultimately overwhelming the original law itself. (Locke points to the problem of “rotten boroughs” as an example; interestingly, the authors of the Federalist cite the same example.) And while Locke was a constitutional monarchist, I think this case establishes the necessity of prerogative power for republican and democratic government as well. As all the great constitutionalists have observed since Aristotle, a well designed government cannot be purely of one form, but must mix institutions of both democratic and aristocratic tendencies to succeed.

Ah, but for anyone who wanted to rely on this to justify the president, there’s a catch. Locke argued that prerogative could only be legitimate where it is “manifestly for the good of the people.” That is, it must be clear to the public that you are deviating from the letter of the law for the public’s own good. Locke seems to think that the public will not have difficulty discerning when the executive is acting for the public good (and thus using his just prerogative) and when the executive is substituting his own will for the law, putting himself at war with his people.

In this way, prerogative is much like civil disobedience. You are sticking your neck out by defying the law and claiming that it is legitimate to do so. The only way to do this and maintain the rule of law is if you agree to abide by the consequences. For the civilly disobedient, this means submitting to punishment. For the executive using prerogative, it means abiding the judgment of the community. If your defiance of the law is not clearly for the public good, the community has every right to take corrective action.

One of the most important barometers of sincerity is whether the executive is willing to work with the legislature to craft a remedy in the law, so that prerogative power will no longer need to be exercised. The president’s unilateral rewriting of the heath care law looks particularly bad in this regard, because even as he is purporting to “fix” the law by fiat, he is openly opposing all efforts in the legislature to actually fix the law.

Thankfully, the American founders have bequeathed us a constitutional republic in which we have many options for reining in a willful executive without resorting to the armed rebellion that was, too often, the only practical recourse against kings. I predict we will be needing these options more and more in the coming generation.