Imperial from the Beginning by Saikrishna Bangalore Prakash

Author:Saikrishna Bangalore Prakash
Language: eng
Format: epub
ISBN: 9780300194562
Publisher: Yale University Press

Conclusion

The grant of executive power has a somewhat different valence in America than in England and on the Continent. The president has no power to confer privileges such as corporate status, and cannot grant residency status to foreign aliens. The president has no religious authority and cannot regulate foreign commerce.

In other respects, the president faces constraints that were common in England, the colonies, and the states. Like many of his predecessors, he lacks an emergency power, a power to do whatever he deems necessary to avert or manage crises like invasions and rebellions. Instead, he must rely on Congress to delegate emergency authority. Relatedly, the president can neither suspend habeas corpus nor charge civilians in military courts, for such authority has never been part of the executive power in America.

The president also lacks privileges and immunities. So far as the Constitution is concerned, the president can sue and be sued. Indeed, he might even be prosecuted criminally. Moreover, the president lacks a constitutional right to keep secrets from Congress and the courts. Nothing in Article II intimates that the president has a right to every instrument, mechanism, or privilege that he (or we) might deem necessary for the sound functioning of the executive branch.

Yet the Constitution is flexible enough to permit Congress to grant additional powers, privileges, and immunities to the executive. Just as Congress decides whether the president will have the far more significant assistance that comes from officers and departments, it also may determine that the president needs emergency authority, immunity from suit, and evidentiary privileges.

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