The problematic but seductive call of prerogative power

Abstract

AbstractThis article investigates and critiques the view that Lockean prerogative power is or should be incorporated, legally or extralegally, into the American constitutional system. Some scholars argue that extraconstitutional prerogative represents a safer alternative to a broad legal reading of presidential power, as it creates fewer precedents. Others suggest that the Framers “constitutionalized prerogative.” Both of these views have difficulties because ultimately, prerogative can create more dangerous precedents than legal uses of presidential power.