POLITICAL EDUCATION, CONSERVATIVE ANALYSIS

POLITICS, SOCIETY, & THE SOVEREIGN STATE

Website of Dr. Almon Leroy Way, Jr.

Page Eight

HOW AMERICA GOES TO WAR:

THE PRESIDENT, AMERICAN LAW, & U.S. MILITARY
INTERVENTION INTO FOREIGN CONFLICTS
By

Almon Leroy Way, Jr.


G. DEVELOPMENTt OF AN INDEPENDENT PRESIDENTIAL WAR-MAKING      POWER   (Continued)

5. The President's Reliance on Prerogative Theory

In their endeavor to develop and legitimize an independent presidential war-making power, U.S. presidents have utilized the prerogative theory of presidential authority. According to this theory, the U.S. Constitution vests in the President a broad prerogative--a general, undefined power that is inherent in the Office of President and is in addition to the more specific, less ambiguous enumerated grants of presidential authority contained in Article II, Sections 2 and 3, of the Constitution. The adherents of prerogative theory hold that the presidential prerogative is a broad power to act in the national interest, or general welfare, of the U.S.A. during time of a very serious national crisis or extreme emergency. They contend that the President has general, undefined authority and responsibility to take rapid and decisive action to cope with a national crisis or emergency situation of extraordinary proportions, e.g., the U.S.A. being subject to foreign invasion or attack or being in imminent danger of foreign invasion or attack.

What is the constitutional basis of the prerogative theory of presidential power? According to the theory's adherents, three clauses in the Federal Constitution--Article II, Clauses 1 and 8, and Article II, Section 2, Clause 1--give the President a broad prerogative.

    Article II, Section 1, Clause 1:
    "The executive Power shall be vested in a President of the United States of America."
    This clause is interpreted by the prerogative theorists as vesting in the President a very broad, undefined "executive Power" that is in addition to the more specific executive powers granted to the President by Sections 2 and 3 of Article II.
    Article II, Section 1, Clause 8:
    "Before he [the President] enter on the Execution of His Office, he shall take the following Oath or Affirmation: 'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability preserve, protect and defend the Constitu- tion of the United States.'"
    Clause 8 of Section 1 is construed by the prerogativists as granting the President general, undefined authority to take action to--
    Faithfully execute (perform the duties of) the Office of President;
    Preserve, protect, and defend the Constitution.