The Magazine

The Law and the President

In a national emergency, who you gonna call?

Jan 16, 2006, Vol. 11, No. 17 • By HARVEY MANSFIELD
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Yet the legislature and the judiciary will of course be partial to the rule of law, and the executive partial to the need for discretion. The Constitution maintains both opposite principles by arranging for an interested party or parties to support that principle in exercising its power. It does not try to teach the overall truth to all parties, as if it were possible to have the legislature and judiciary demurely defer to the executive when discretion is needed, and the reverse when the rule of law rightly asserts itself. No, there will be conflict between discretion and the rule of law, each party aware of the other principle but more convinced by its own.

That is why the two principles do not coincide with the differences between liberals and conservatives, or Democrats and Republicans. Democrats uphold the rule of law now, because as things stand that is all they can hope for. When they held the presidency with Bill Clinton, it was they, during the impeachment trial, who called for pardon and the Republicans holding Congress who tried manfully to vindicate the rule of law by punishing a president who admitted he had violated the law.

In combining law and discretion, the Framers of the Constitution made a deliberate departure from the sorry history of previous republics that alternated between anarchy and tyranny. The Federalist Papers, the most authoritative source for understanding the thinking of the Framers, make it clear that republicans had gone astray because they had overconfidently ignored the necessities that all governments face and had tried to wish away the advantages of size, power, flexibility, foresight, and prudence that monarchies may offer. In rejecting monarchy because it was unsafe, republicans had forgotten that it might also be effective. The Framers made a strong executive in order to have both power and security, and they took note of emergency occasions when more power gives more security.

Separation of powers was a republican invention of the 17th century, but the Framers improved it when they strengthened the executive. They enabled the executive to act independently of the legislature and not merely serve as its agent in executing the laws. In the current dispute over executive surveillance of possible terrorists, those arguing that the executive should be subject to checks and balances are wrong to say or imply that the president may be checked in the sense of stopped. The president can be held accountable and made responsible, but if he could be stopped, the Constitution would lack any sure means of emergency action. Emergency action of this kind may be illegal but it is not unconstitutional; or, since the Constitution is a law, it is not illegal under the Constitution.

To be held responsible, the executive must be able to act independently. To the extent that he depends on others to act, as in getting a law passed, responsibility is distributed to others and it is no longer clear who precisely is responsible. A president can evade responsibility by consulting with others and then, if something goes wrong, put the blame on them. This is one of the oldest tricks in the book, and canny politicians will often refuse to be consulted lest they get the blame for someone else's mistake and lose the ability to lay blame themselves. To be sure of responsibility you must fix it on one person; true responsibility is sole responsibility. That is why, under our republican Constitution, the people, when they want to hold the whole government responsible, end up holding the president responsible.

The Federalist tells us that a republican constitution needs energy and stability, terms taken from physics to designate discretion and law. Energy has its place in the executive, and the foremost guarantee of energy is "unity" (Federalist 70), meaning unity in one person as opposed to a committee or a council. Unity facilitates "decision, activity, secrecy, and dispatch." Note secrecy in this list. Secrecy is necessary to government yet almost incompatible with the rule of law (the exception being when congressional committees meet in "executive," i.e. secret, session). Yet secrecy is compatible with responsibility because, when one person is responsible, it does not matter how he arrives at his decision. To blame or reward him, one does not have to enter into "the secret springs of the transaction," as would be necessary if responsibility were shared.