A Case of Just Prerogative

virtue of Prudence


Prudence depicted as a martial virtue (HT)

When I wrote last week about how the president’s monarchical attempts to “fix” his health care law raise the question of just prerogative, I knew that to illustrate my point fully I really ought to provide an example of the just use of prerogative, preferably from the same president’s administration. But I was writing in a hurry and couldn’t think of one off the top of my head. I have just found the perfect example in this article on the topic of the president’s contempt for the law, by the always-interesting Kevin Williamson.

In a similar vein, President Obama refused to cut off foreign-aid funds to the Egyptian government, though he is required by law to do so in the event of a coup d’état, which is precisely what happened in July in Egypt. It might be embarrassing for the president to punish the Egyptian military and the grand mufti of al-Azhar for their overthrow of the unpopular Mohamed Morsi, but the law does not make exceptions for presidential embarrassment.

Three points:

1) Williamson seems to suggest that the president was wrong to continue aid to Egypt after the coup, even though the new regime is actually preferable to us compared with the Muslim Brotherhood, solely for the sake of adhering to the law. This strikes me as precisely the sort of case where just exercise of prerogative is warranted. The law that we must cut off aid after a coup is a good and useful law as applied to most circumstances, because we want to reward just and legitimate governments while distancing ourselves from tyrants. However, in this case the coup was actually overthrowing a tyrant; applying the law here would undermine its very purpose.

2) If the decision to keep aid flowing to Egypt had been announced transparently as an exercise of prerogative, rather than by engaging in some legerdemain over the definition of what counts as a coup, we would all have been better off. The legislature would have had to take that as a clear occasion to either back the president (if only implicitly by doing nothing) or pass a law to overrule him. Either way, the exercise of prerogative would have been more clearly reconciled with the rule of law, because the legislature would have been put in the position of making the final decision. And the public would have gotten an education in the just power and limits of prerogative, which might have come in handy right about now.

3) Most importantly, Williamson’s article demonstrates Locke’s point that the consistent abuse of executive authority delegitimizes the prerogative power even when rightly used. Williamson chronicles a long list of monarchical power grabs by the executive branch under this administration. It is no wonder he is not inclined to trust the administration to exercise its judgment about when to apply the law and when not to. Executives need that trust; bad executives forfeit it, to everyone’s detriment.

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