Date of Award
Bachelor of Arts
Elliott, John M.
Jensen, Pamela K.
The relationship between the American president and the rule of law appears at first obvious, but is actually quite complex. Though it might seem that the man charged with "the executive power" should and would always execute the law faithfully, a look at American history suggests that this is not entirely the case. Instead, there is an ambivalence, reflected even in John Locke, about which is superior: law or executive discretion. Reviewing Locke and the founders' thoughts on the executive office, it is clear that the president is imbued with an impulse to pursue the public good of his own volition and regardless of the direction of statute. At times, this impulse has pushed the executive to employ a broad construction of Article II to take action unbidden by specific provisions of statute or the Constitution. At other times, however, this impulse to exercise prerogative has led the president to violate statute and constitutional provisions in order to pursue his own vision of the public interest. The president has supplied his energy, unity, and discretion to cases in which the law was deaf and unyielding to exigent circumstances. This practice, however, is not tolerated by liberal theory, which promises limited government and an escape from arbitrary power. As a result, the president has attempted to move his behavior within the law, sometimes by claiming broad executive power, sometimes by seeking to change the law, and sometimes by misinterpreting the law to provide the appearance of abiding by it. This behavior must be understood within the broader context of the system of checks and balances that accommodates for competing claims to power from the branches of government. The lasting and unresolved ambiguity about the relationship between the president and the law continues to influence the behavior of the executive within this broader context.
Riddell, Rebecca, "The problem of prerogative: several examples from the American presidency" (2009). Honors Theses. 16.