Prerogative and Administrative
(Chapter 2 page 26-29
(for example, books on history of government “administration” usually encompass the development of nearly all domestic governmental
operations.) More narrowly, however, from the 17th century to the president, the Kings prerogative was sometimes been understood as his extra-or supralegal exercise of binding legislative and judicial powers. Similarly, nowadays, the executive’s administration power can be understood as the executive’s extra- or supralegal exercise of such powers. From this perspective, which is adopted here, “prerogative” and “administrative” are terms of opprobrium, and where they are used in looser
ways, the meeting should be clear enough from the context.
In the footnote: Another understanding of “prerogative” became evident after the king’s extralegal prerogative was subdued and the word was used to mean the King’s lawful executive power. On this understanding, it was recognized that “the great branch of the progressive is the executive power of government,” and one could speak ambidextrously of the
“prerogative or the executive.” The prerogative, in this sense, lawfully continued to exist, even after the unlawful prerogative was prohibited. Hence, the possibility of the lawful “absolute prerogative” discussed in note b.*
For centuries, Crown lawyers seem deliberately to have cultivated ambiguity about whether the King’s prerogative was entirely lawful. When the king claimed a power to bind his
subject with rules he made outside parliament, or when he claimed a power to enforce such rules and tribunals other than the courts of law, he couldn’t seem to be asserting a power outside and even above the law. Yet there were risk in openly claiming any prerogative as an exercise of absolute power, for Kings depended on the legitimacy of the law and rarely could afford to declare that they were acting outside or above it. At the same time, however, it was indivisible for the Crown to concede
that all Royal attempts to bind subjects had to be exercised through the law, for this would have invited limits on royal power. Being caught between these difficulties, the Crown often remained relativity silent about the theory of absolute power, hoping through politic reticence to enjoy the best of both worlds, legal and extralegal.
By the last half of the 17th century, however, this studied ambiguity was
increasingly untenable. Henry VIII and his successors relied upon the supremacy of the law of the land to fend off foreign, papal claims. Having thus elevated the law of the land as the measure of all power within the realm, they then could have defend their power to act independently of the law only by making explicit that some of their prerogatives were apart from the law and above it. It does became commonplace, at least among men who hope for royal patronage, to say that the king had 2 types
of prerogative, lawful and absolute. Whereas ordinary or regular prerogatives were acknowledged to be subject to law and thus reviewable in the courts of law, extraordinary or irregular prerogatives were said to be independent of law and even above it. By the time of James 1, in the early 17th century, the king himself publicly asserted not only his ordinary but also his “absolute prerogative.”
As it happens,
just as Congress has authorized much administrative power, Parliament in the 16th century authorized or at least acquiesced in many of the absolute prerogatives claimed by English monarchs. For hundred years later, the theory that the monarch’s absolute prerogative was inherent in his sovereignty remains familiar; but less well understood is that monarchs simultaneously relied on statutory authorization for some of the central manifestations of that prerogative—as will be seen
regarding proclamations, the Star Chamber, and the High Commission. Thus, even for prerogatives defend it in absolutist terms, statutory authority mattered when it came down to the concrete level of legal argument. Of course, monarch and their prerogative tribunals frequently went beyond the statutory authorization, but this makes the similarity to American administrative power all the more striking.
With or without
statutory foundation, prerogative power provoked constitutional limits. The English, especially English lawyers, had long been profoundly attached to government by an under law, and in response to open claims of absolute power, common lawyers became openly skeptical as to whether a king could lawfully exercise lawmaking power outside the law or judicial power outside the judgments of the courts. They therefore increasingly condemned the lawmaking and adjudicatory prerogatives as unlawful
exercise of absolute power-unlawful both because they were outside ordinary law and adjudication and because they thereby reached above the law. Indeed, it will be seen that the English adopted ideas about the English Constitution precisely in order to make clear that there could be no binding or constraining government power outside or above the law.
Following in this tradition, Americans constitutions almost uniform
only authorized American governments to act against their subjects only through and under law. As put by John Adams in 1776, Americans aim to establish government in which governor or president had “the whole executive power, after divesting it of those badges of domination called the prerogatives,” by which Adams meant, of course, the absolute prerogatives.
In the footnote: letter from John Adams to William Hooper (ante
March 27, 1776), in Legal Papers of John Adams, 4:76 (Cambridge: Belknap Press, 1979). So far did Americans go in this direction that when Madison worried about the threat from legislative tyranny, he complained that the “founders of our Republic” seem “never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate.” James Madison, Federalist Number 48, in The Federalist, 33, ed. Jacob E. Cooke (Middletown:
Wesleyan University Press, 1961).
Nowadays, however, American the strata of law revise the extralegal government familiar with the royal prerogative. To be precise, it restores a version of the absolute prerogative — the extra- and supralegal power that purported to bind and that flourished beyond the development of constitutional law. Of course, like Adams, this book usually abbreviates its illusion to the absolute
prerogative, saying merely that there has been a return to prerogative power. The point, however, should be clear enough. Whether called “prerogative” or “administrative,” there has been a return to power outside the law — a revision to this sort of power that constitutional law most certainly prohibits.
