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WORK TITLE: America’s founding and the struggle over economic inequality
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PSEUDONYM(S):
BIRTHDATE:
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CITY:
STATE:
COUNTRY:
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https://pir.fiu.edu/people/faculty/clement-fatovic/ * https://pir.fiu.edu/people/faculty/clement-fatovic/fatovic-cv-4-16.pdf * http://inequality.org/philadelphias-forgotten-spirit-1776/
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LC control no.: n 2009000233
LCCN Permalink: https://lccn.loc.gov/n2009000233
HEADING: Fatovic, Clement, 1973-
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670 __ |a Fatovic, Clement. Liberal constitutionalism and emergency action, 2009: |b ECIP t.p. (Clement Fatovic) data view (b. Mar. 7, 1973; professor, Political Science Dept., Florida International University, Miami, FL)
PERSONAL
Born March 7, 1973.
EDUCATION:Rutgers University, B.A., 1995; Cornell University, M.A., 2000; Cornell University, Ph.D., 2002.
ADDRESS
CAREER
Cornell University, Ithaca, NY, instructor, 2001-02; University of Florida, Gainesville, adjunct assistant professor, 2002-03; Vassar College, Arlington, NY, visiting assistant professor, 2003-04; Florida International University, Miami, FL, assistant professor, 2004-10, associate professor, 2010–.
MEMBER:American Political Science Association.
AWARDS:Edward McNall Burns Award in Political Science, Rutgers University, 1995; Sage Foundation Fellowship, Cornell University, 1995-96; Olin Foundation Fellowship, Cornell University, 1996-2000; CALI Excellence for the Future Award in American Legal Theory, Cornell University, 1998; Janice N. and Milton J. Esman Annual Prize for Distinguished Scholarship, Cornell University, 2002.
WRITINGS
Has published articles in American Journal of Political Science, Perspectives on Politics, History of Political Thought, Journal of the History of Ideas, American Political Thought, the Maryland Law Review, and Good Society. Has contributed chapters to books, including The SAGE Encyclopedia of Political Theory, edited by Mark Bevir, Sage Publications (Thousand Oaks, CA), 2010, and The Encyclopedia of Political Thought, edited by Michael T. Gibbons et al., Wiley Blackwell, (Oxford, England), 2014.
SIDELIGHTS
Clement Fatovic is a professor in the Department of Politics and International Relations of the Steven J. Green School of International and Public Affairs at Florida International University. Fatovic earned his bachelor’s degree at Rutgers University and both a master’s and a Ph.D. at Cornell University. After holding posts at Cornell University, the University of Florida, and Vassar College, he began teaching at Florida International University in 2004. His research and teaching focus is on modern and contemporary political and constitutional theory, particularly American political thought, democratic theory, and executive power.
Fatovic has published numerous articles in various journals, including American Journal of Political Science, Perspectives on Politics, History of Political Thought, Journal of the History of Ideas, American Political Thought, Maryland Law Review, and Good Society, and has also contributed chapters to books. With Benjamin A. Kleinerman, he has edited Extra-Legal Power and Legitimacy: Perspectives on Prerogative, a book to which he also contributed chapters. In this book the authors examine how extralegal powers have been used through history, finding both positive and negative aspects; study models of governments that have wielded such emergency powers; and put forward questions what limits to such power there may be in contemporary life.
Outside the Law
His first single-authored book is Outside the Law: Emergency and Executive Power. In this book, Fatovic delves into the executive authority to step beyond the law when emergencies dictate. Writing in Choice, D. Schaefer noted that the political theorists John Locke, David Hume, and William Blackstone, as well as the founding fathers of America—writing from a liberal perspective—did not expect the general populace to embrace “civic virtue” but did indeed expect those in government to hold themselves up to such a standard. Thus, vesting of such emergency power in the executive was not expected to be fraught with danger. Fatovic, however, argues that in light of contemporary events, “civic virtue among a watchful citizenry” is needed to “oversee the president’s actions.” In Political Science Quarterly, Matthew A. Pauley put forward the conundrum: “When crises arise, the executive may need to exceed the limits of the law in order to preserve it.” This gives us the “paradox of liberal constitutionalism: the rule of law is sacred, but departures from it may sometimes be peremptorily necessary.” The idea is that the checks and balances of three-branch government should prevent abuses. However, as James Madison told us—”enlightened statesmen are not always at the helm.” Moreover, “presidents can and often do find ways to evade … legislative restrictions.”
Louis Fisher, critiquing the book for Law and Politics Book Review, observed that Fatovic “has written a thoughtful book that analyzes the writings of Niccolò Machiavelli, John Locke, David Hume, William Blackstone, and the American framers to determine under what conditions a President may go outside the law to protect the nation and its citizens.” Fisher notes that at the very end of the book, “Fatovic pins his hopes on the virtue of citizens capable of assessing the performance of elected leaders and being able and willing to ‘challenge abuses of the power they entrust to their leaders’. On that note, the American framers would likely nod their approval.” A critic in Reference & Research Book News remarked that Fatovic’s discussion would “interest (and sometimes disconcert) scholars of liberalism, the U.S. Constitution, and the presidency.”
America’s Founding and the Struggle over Economic Inequality
Fatovic’s book America’s Founding and the Struggle over Economic Inequality looks at the founding fathers and their concern with economic inequality in the republic’s early days. In Choice, S.E. Horn explained that they saw “relative equality as a fundamental requirement of republican government.”
Even the wealthy Alexander Hamilton, who gave America its financial system, believed in aiding those who were “disadvantaged.” If equality were not preserved, the country would be politically dominated by the very rich. Horn concluded that this a “timely book.”
BIOCRIT
PERIODICALS
Choice, May, 2010, D. Schaefer, review of Outside the Law: Emergency and Executive Power, p. 1781; June, 2016, S.E. Horn, review of America’s Founding and the Struggle over Economic Inequality, p. 1518.
Political Science Quarterly, fall, 2010, Matthew A. Pauley, review of Outside the Law, p. 540.
Reference & Research Book News, February, 2010, review of Outside the Law.
ONLINE
Florida International University Web site, https://pir.fiu.edu/ (May 30, 2017), author faculty profile.
Law and Politics Book Review, http://www.lpbr.net/ (June 15, 2017), Louis Fisher, review of Outside the Law.*
Clement Fatovic
Clement Fatovic
Areas of Expertise
Political Theory, Constitutional Theory, Rule of Law, Executive Power
Degrees
BA, Rutgers University, Political Science, 1995
MA, Cornell University, Government, 2000
PhD, Cornell University, Government, 2002
Contact
Office: Modesto A. Maidique Campus, SIPA 424
Office Hours: Thursday 2:00pm - 4:00pm and by appointment
Tel: 305.348.6428 | fatovic@fiu.edu
Dr. Fatovic's primary research and teaching interests are in modern and contemporary political and constitutional theory, including American political thought, democratic theory, and executive power.
Professor Fatovic’s research focuses primarily on the development of liberalism and modern constitutionalism in seventeenth- and eighteenth-century political thought, especially at the American Founding. Much of his research has explored how liberal political thinkers such as John Locke, Alexander Hamilton, and Thomas Jefferson have addressed the limits of the law and the dangers of discretionary power in dealing with emergencies and other extraordinary occurrences. He is particularly interested in the relevance of their ideas to current debates over the tensions between emergency powers and the rule of law in the context of the “war on terror.” His first book, Outside the Law: Emergency and Executive Power (The John Hopkins University Press, 2009), examines the extra-legal powers of the executive in liberal constitutional thought from John Locke to the creation of the American presidency. Extra-Legal Power and Legitimacy: Perspectives on Prerogative (Oxford University Press, 2013), a book that was co-edited with Benjamin A. Kleinerman, surveys the ways that different models of emergency power legitimize and constrain the use of extra-legal measures.
Professor Fatovic’s articles have appeared in the American Journal of Political Science, Perspectives on Politics, History of Political Thought, Journal of the History of Ideas, American Political Thought, the Maryland Law Review, and The Good Society. He is currently completing a single-authored book (The Politics of Economic Inequality in Postrevolutionary America) that explores debates over the proper role of the government in dealing with various forms of economic inequality during the first few decades of the American Republic.
Fatovic, Clement. America's founding and the struggle over
economic inequality
S.E. Horn
CHOICE: Current Reviews for Academic Libraries.
53.10 (June 2016): p1518.
COPYRIGHT 2016 American Library Association CHOICE
http://www.ala.org/acrl/choice/about
Full Text:
Fatovic, Clement. America's founding and the struggle over economic inequality. University Press of Kansas, 2015. 337p index afp ISBN
9780700621736 cloth, $39.95; ISBN 9780700621514 ebook, contact publisher for price
(cc) 53-4467
HN90
2015-26842 CIP
Fatovic (Florida International Univ.) presents a compelling case that the US's founding generation was deeply concerned about economic
inequality. Though Americans of that period tended to overestimate the degree to which equality characterized their new republic, they were
nevertheless committed to preserving what they viewed as an exception to the inequalities of Europe, understanding relative equality as a
fundamental requirement of republican government. Early Americans believed that some degree of wealth and income inequality was an
inevitable consequence of freedom itself, but they also believed that too much inequality could be destructive, leading to political domination of
the poor by the rich, and that public policies should therefore lean against that tendency. Economic power, then, was seen as intrinsically linked
with political power and the survival of self-rule as dependent on avoiding vast inequalities. Fatovic demonstrates that even Alexander Hamilton--
long considered a champion of the wealthy merchant class--favored policies that minimized the burdens of the disadvantaged, advocating for
progressive taxation among other things. Others went much further, of course. But Fatovic makes it clear in this timely book that concern over
inequality was widespread in the early republic. Summing Up: *** Highly recommended. Academic readership: undergraduates, graduate
students, faculty, researchers; general readers.--S. E. Horn, Everett Community College
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Source Citation (MLA 8th
Edition)
Horn, S.E. "Fatovic, Clement. America's founding and the struggle over economic inequality." CHOICE: Current Reviews for Academic
Libraries, June 2016, p. 1518. General OneFile, go.galegroup.com/ps/i.do?
p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA454942878&it=r&asid=1b7db6859fc57accf41895f78a611de8. Accessed 15 May
2017.
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Fatovic, Clement. Outside the law: emergency and executive
power
D. Schaefer
CHOICE: Current Reviews for Academic Libraries.
47.9 (May 2010): p1781.
COPYRIGHT 2010 American Library Association CHOICE
http://www.ala.org/acrl/choice/about
Full Text:
47-5309 JK339 2008-55996 CIP
Fatovic, Clement. Outside the law: emergency and executive power. Johns Hopkins, 2009. 352p index afp ISBN 0801893623, $55.00; ISBN
9780801893629, $55.00
In this amply documented book, Fatovic (Florida International Univ.) explores the theme of executive prerogative (the authority to act beyond or
even against the letter of the law in times of emergency) in modern liberal political theory, as enunciated by John Locke, David Hume, William
Blackstone, and the American Founders. His thesis is that these liberal constitutionalists, despite seeking to design political institutions so as to
minimize their dependence on the presence of moral virtue, expected this political machinery to "supplement" rather than "supplant" that quality.
He maintains that such constitutionalists, while abandoning the hope of earlier republican thinkers for widespread civic virtue among the
populace at large, "moved toward an elitist conception of virtue that would be concentrated in government," most obviously in the US
presidency-thus making executive prerogative safe. In light of contemporary events, however, Fatovic concludes that "the fate of free government
depends" on the presence of civic virtue among a watchful citizenry who will oversee the president's actions, thereby making up for "the failures
of institutions that have been specifically designed to compensate for the fallibility of virtue." Recommended for larger libraries. Summing Up:
Recommended. ** General readers, upper-division undergraduate students, and above.--D. Schaefer, College of the Holy Cross
Source Citation (MLA 8th
Edition)
Schaefer, D. "Fatovic, Clement. Outside the law: emergency and executive power." CHOICE: Current Reviews for Academic Libraries, May
2010, p. 1781. General OneFile, go.galegroup.com/ps/i.do?
p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA251862206&it=r&asid=44185816472d1b03ac0c12d578466a42. Accessed 15 May
2017.
Gale Document Number: GALE|A251862206
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Outside the Law: Emergency and Executive Power
Matthew A. Pauley
Political Science Quarterly.
125.3 (Fall 2010): p540.
COPYRIGHT 2010 Academy of Political Science
http://www.psqonline.org/History.cfm
Full Text:
Outside the Law: Emergency and Executive Power by Clement Fatovic. Baltimore, MD, Johns Hopkins University Press, 2009. 352 pp. $55.00.
Clement Fatovic argues that theorists of liberal constitutionalism, from John Locke and David Hume to William Blackstone and Alexander
Hamilton, endorsed extraordinary executive power in emergencies. For them, this authority was constrained principally by the public virtue of the
executive.
Fatovic says that law aims at order in a world of "unavoidable instability, unpredictability, and irregularity" (p. 1). When crises arise, the
executive may need to exceed the limits of the law in order to preserve it. From this stems the paradox of liberal constitutionalism: the rule of law
is sacred, but departures from it may sometimes be peremptorily necessary.
Critics like Carl Schmitt have argued that it is impossible for liberalism, with its "excessively legalistic orientation" (p. 4), to reconcile this
contradiction. Fatovic contends, on the contrary, that liberal constitutionalists "recognized the need to supplement the rule of law with a personal
element in cases of emergency" (p. 4).
As Fatovic might have added, the American Founders were aware that as Aristotle had taught, governing a state by strict adherence to the rule of
law is like trying to cure oneself of a disease by consulting only a medical encyclopedia.
It is commonly thought that the Framers relied primarily on institutional checks and balances to guard against abuses of this prerogative because,
as James Madison famously observed, enlightened statesmen are not always at the helm. Fatovic insists, however, that liberals from Locke to
Publius saw these as insufficient to constrain an executive ambitious to aggrandize power. They understood that "it was imperative to select
leaders who had well established reputations for selfless public service if they were to be trusted with the dangerous discretionary powers"
sometimes needed in crises (p. 22).
It would be preferable if Fatovic had provided more detail on how the Framers intended executive power to "vary according to the character of
the person exercising that authority" (p. 8).
Fatovic is correct to cite Niccolo Machiavelli's observation that "contingency is the single constant in politics" (p. 11) and to say that modern
scholars have not understood "the extent to which Machiavelli's ideas shaped the understanding of early liberal political thinkers" (p. 15). Fatovic
argues that it would be surprising if political theorists of the generation of the American Founders did not have a clear appreciation of the need for
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prerogative, living as they did in an age of "religious conflicts, treacherous political intrigue, violent uprisings and insurrections, perilous
struggles for independence, burgeoning industrialization, and accelerated urbanization" (p. 16). But then, we too live in such an age, and critics of
prerogative power are hardly rare today.
Fatovic goes on to argue that Locke's chapter on prerogative is not a contradiction in his political philosophy as many have insisted, to emphasize
references to the character of English monarchs in Hume's History, and to highlight the "surprisingly expansive notions of executive power" in
the writings of the great champion of parliamentary supremacy, William Blackstone. He traces how Americans of the founding era went from
being "deeply suspicious of executive power" to recognizing the need for it, and he depicts in detail the Anti-Federalist and Federalist debate
about the unprecedented powers of the new chief executive.
In his conclusion, Fatovic mentions how much of emergency government is now statutory, but he reminds us that presidents can and often do find
ways to evade these legislative restrictions. In the age of terror, the crucial question, as Fatovic says, is how long an emergency lasts. Reviewing
character flaws of some recent presidents, Fatovic ends by admitting that "the fate of free government depends on the virtue of its citizens" (p.
276).
MATTHEW A. PAULEY
Manhattanville College
Pauley, Matthew A.
Source Citation (MLA 8th
Edition)
Pauley, Matthew A. "Outside the Law: Emergency and Executive Power." Political Science Quarterly, vol. 125, no. 3, 2010, p. 540+. General
OneFile, go.galegroup.com/ps/i.do?
p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA237453340&it=r&asid=6d5254c308cf5fb18e2a9d92dffadd09. Accessed 15 May
2017.
Gale Document Number: GALE|A237453340
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Outside the law; emergency and executive power
Reference & Research Book News.
25.1 (Feb. 2010):
COPYRIGHT 2010 Ringgold, Inc.
http://www.ringgold.com/
Full Text:
9780801893629
Outside the law; emergency and executive power.
Fatovic, Clement.
Johns Hopkins U. Press
2009
352 pages
$55.00
Hardcover
The Johns Hopkins series in constitutional thought
JK339
Long before George W. Bush used the "enemy combatants" label to jail terrorist suspects indefinitely, presidents were invoking emergency
executive powers and scholars were debating the constitutional legitimacy of those powers. In this book, Fatovic (Political Theory, Florida
International University) joins the fray, arguing that, from its beginnings, liberal constitutional theory explicity endorsed the use of extraordinary
measures to deal with genuine national emergencies. Tracing this idea from John Locke's "prerogative" through to the Constitutional Convention
and the early years of the Republic, the author explains how liberalism's founders attempted to reconcile the principles of constitutional
government with the possibility that some circumstances would demand that an executive take actions that are normally outside the law. Fatovic's
arguments will interest (and sometimes disconcert) scholars of liberalism, the U.S. Constitution, and the presidency.
([c]2010 Book News, Inc., Portland, OR)
Source Citation (MLA 8th
Edition)
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"Outside the law; emergency and executive power." Reference & Research Book News, Feb. 2010. General OneFile, go.galegroup.com/ps/i.do?
p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA224419667&it=r&asid=5c4db9ebdeabdf562e1f2e34c384d920. Accessed 15 May
2017.
Gale Document Number: GALE|A224419667
OUTSIDE THE LAW: EMERGENCY AND EXECUTIVE POWER
by Clement Fatovic. Baltimore, Md.: Johns Hopkins University Press, 2009. 352 pp. Cloth. $55.00. ISBN: 9780801893629.
Reviewed by Louis Fisher, Scholar in Residence, The Constitution Project. Email: Lfisher11 [at] verizon.net. The views expressed here are personal, not institutional.
pp.661-665
Following the terrorists attacks of 9/11, many books explored the scope of presidential power to respond to emergencies, including the use of various prerogative and inherent authorities to act outside the law for the public good. Clement Fatovic, who teaches political theory at Florida International University, has written a thoughtful book that analyzes the writings of Niccolò Machiavelli, John Locke, David Hume, William Blackstone, and the American framers to determine under what conditions a President may go outside the law to protect the nation and its citizens.
The book begins with this premise: “Order is essential to the very idea of law.” Law pursues many other aims, including justice, equality, and the protection of individual rights, “but no other aim is as basic as order” (p.1). If order is the highest value, it would seem that individual rights and liberties are necessarily subordinate. Fatovic goes back and forth on that theme. Initially, he insists that “emergencies sometimes compel the executive to exceed the strict letter of the law” (p.2). He cites the German theorist Carl Schmitt for the proposition that liberalism “is incapable of dealing with the ‘exception’ or a ‘a case of extreme peril’ that poses ‘a danger to the existence of the state’ . . . .” (p.3). The result: Adolf Hitler and Nazi Germany. But liberalism has not been so rigid or dogmatic about the rule of law that it is incapable of preparing for and responding to emergencies.
The writers analyzed by Fatovic “recognized the need to supplement the rule of law with a personal element in cases of emergency” (p.4). The American framers, having weathered the War of Independence against England, were not naïve about crises. Several provisions in the Constitution anticipate emergencies: suspending the privilege of the writ of habeas corpus “in Cases of Rebellion or Invasion [when] the public Safety may require it,” prohibiting states from engaging in war “unless actually invaded, or in such imminent Danger as will not admit of delay,” and obliging the federal government to protect each state “against Invasion; and . . . against domestic Violence.” At the Philadelphia Convention, the framers understood that the President may have to “repel sudden attacks.” The Militia Acts of 1792 and 1795 authorized military force in cases of invasion or insurrection.
Fatovic does not focus on the war power. The President’s power as Commander in Chief “raises vexing questions well beyond the scope of this book” (p.255). He does cover a number of actions taken by the administration of George W. Bush after 9/11, including interrogation methods, the wars in Afghanistan and Iraq, and the warrantless surveillance [*662] program. He frequently refers to the controversial assertions of “inherent” presidential power promoted by Jay Bybee and John Yoo in their Justice Department memos. At various places in the book, Fatovic appears to accept the legitimacy of “inherent” presidential powers. There were “certain inherent powers that all executives would enjoy” (p.6). What restraints would prevent executives from abusing their discretionary authority? Primarily, citizens had to depend on the virtue of the Executive. By the end of the book, Fatovic concludes that virtue is not only a nebulous standard but that U.S. Presidents have demonstrated little capacity for conducting themselves in a manner that justifies placing trust in their judgments and decisions.
According to Fatovic, an open-ended conception of constitutionalism “clashes with the views of those who believe that the U.S. Constitution imposes strict legal constraints that limit the president to the exercise of expressly enumerated powers . . . .” (p.9). The three branches of the government have never been confined to “enumerated” powers. They have always possessed both enumerated and implied powers. A constitution cannot possibly identify every power. There must be powers by implication, including the power of Congress to investigate, the power of the President to remove department heads, and the power of federal courts to exercise judicial review.
The book explores two competing themes: “One is an openness to exercises of extralegal prerogatives in cases of emergency. The other is a belief in the continuing need for virtue in the executive to inhibit abuses of prerogative. Both ideas rest on acknowledgment that contingency is the inescapable condition of politics” (p.10). As to Locke’s defense of the executive prerogative – permitting the Executive to act not only in the absence of law but against it, for the public good – Fatovic admits it is difficult to square this theory with Locke’s ideals of republican and constitutional government. “Prerogative is an imperfect solution for an imperfect world” (p.81). That is true. Fatovic does not say so explicitly, but at times prerogative is not a solution and it can make the world even more imperfect when exercised by inept and corrupt rulers.
Turning to Blackstone, Fatovic lays out the principal values: contempt for “the excesses and ineptitude of legislative intermeddling” and the belief that monarchical judgments will protect the rights and privileges of the people (pp.127, 129). Blackstone believed that the British executive must be “beyond the coercive reach of the law” (p.147). Here is a principle that Bybee and Yoo, in their Justice Department memos, promoted. Fatovic does not explain that Blackstone’s model, placing all of external affairs in the Executive, was wholly repudiated by the American framers. Of the various prerogatives he placed with the King (the power to declare war, make treaties, appoint ambassadors, raising armies and navies, issuing letters of marque and reprisal, etc.) not a single one is vested in the President. They are either assigned exclusively to Congress or shared between the President and the Senate (appointments and treaties). This is a crucial point. The constitutional model developed by Bybee and Yoo borrows heavily from a Blackstonian framework [*663] that the framers clearly rejected (Fisher 2011).
As Fatovic states, “Americans at the time of the Founding were taught to be deeply suspicious of executive power” (p.157). The experiment of a single branch – the Continental Congress – did not work, and the framers arrived at Philadelphia with the decision to create separate executive and judiciary branches. Underlying the framers’ conception of constitutionalism “was the understanding that the contingencies of politics would often exceed the capacities of the law” (p.162). To me, that opens the door too wide for Bybee, Yoo, and others who insist that the President must have the capacity to act against the law and operate free of legislative and judicial constraints.
Fatovic discusses the need for “energy” in the Executive. Of course Alexander Hamilton is largely identified with that position, but the words “energy,” “energetic,” “vigor,” and “invigorate” appear fifteen times on a single page, part Hamilton and part Blackstone (p.176). There is little meaning to the words, unless someone feels emotionally safer with these qualities of executive power: “secrecy, dispatch, decisiveness, vigor, and action” (p.176). The qualities of energy and decisiveness, at different times in American history, have been beneficial. At other times they accurately describe Lyndon Johnson’s escalation of the war in Vietnam and George W. Bush’s decision to invade Iraq on what Fatovic says were not only false claims but “fabricated claims” (p.271).
According to Fatovic, as early as 1780 Hamilton had begun to “formulate a theory of implied or inherent powers that would have allowed Congress to deal with exigent circumstances even when it lacked an express grant of formal powers” (p.182). Implied powers are not a threat to constitutional government. They must be drawn reasonably from express or enumerated powers. The risk comes from inherent powers. Implied and inherent powers are not synonymous. Inherent powers are not drawn from express or enumerated powers. They stand outside, existing as independent powers that exist because of the nature of an office. For the difference between inherent and implied powers, see my report for the Law Library of Congress (available at http://www.constitutionproject.org/manage/file/441.pdf ) and my article in PRESIDENTIAL STUDIES QUARTERLY (http://www.constitutionproject.org/manage/file/440.pdf ).
Fatovic claims that Article II of the Constitution “never specifies the meaning or accessories of executive power and contains no explicit restrictions on executive power as such” (p.189). But taking Articles I and II together, the President is expressly restricted in many areas. He has no sole authority to make treaties or appointments, may not raise armies and navies or make rules for the military, his regular veto is subject to a congressional override, he may not withdraw money from the Treasury without an appropriation. Fatovic says the framers insisted on empowering the President to “deal with emergencies,” including the pardon power, the power to make recess appointments, and the power to convene Congress on “extraordinary Occasions” (pp.192-93). Quite true, but those [*664] powers are not inherent. They are expressly provided for in the Constitution. The Constitution includes other express and implied powers for the President to confront emergencies. Broad congressional statutes delegate even greater latitude, as Fatovic recognizes (pp.255-58).
Fatovic reviews Hamilton’s argument that Article II makes “a general grant of power that belongs exclusively to the president” (p.201). Yes, Hamilton reasoned that Article II confers a broader grant of constitutional power than Article I does for Congress. The latter refers to “All legislative Powers herein granted,” perhaps implying that Congress possesses only powers expressly enumerated. Article II appears to be a broader grant because it omits the words “herein granted.” Instead, Article II provides: “The executive power shall be vested in a President of the United States of America.” Hamilton’s distinction is superficial. Congress is not confined to powers expressly stated. It has access to both express and implied powers, plus the capacious Necessary and Proper Clause, which covers not merely the legislative branch but executive departments as well.
Toward the end of the book, Fatovic recognizes that the U.S. constitutional system does not depend exclusively or even primarily on the “virtue” of the President. Institutional and structural checks and balances were “designed to operate well enough even without that virtue” (p.224). Yes. We need not accept the President as a “father figure” who protects his children, in the same manner that Blackstone glorified the British monarch. Fatovic writes that “[n]early all Anti-Federalists thought it was ludicrous to depend on virtue or better motives in rulers” (p.231). Federalists were not much different. That is why they chose for checks and balances and overlapping branches.
In the concluding chapter, Fatovic shifts back and forth on the need for Presidents to go outside the law. “Although the increased reliance on law gives the impression that it is no longer necessary to resort to extralegal action, there may still be good reasons not to abandon the idea of executive prerogative” (p 254). Sounds like a green light for Bybee, Yoo, and their supporters. Similarly, Fatovic argues [*665] that it is important to distinguish emergencies from other scenarios: “proponents of prerogative were willing to permit the executive to resort to extralegal powers only in those cases where a strictly legal approach would do more harm than good” (p.256). That distinction is too abstract. President George W. Bush came to Congress after 9/11 to seek the Authorization for the Use of Military Force (AUMF), to support military action against Afghanistan, and pushed successfully for the USA Patriot Act. He did not seek legislative authority to create military commissions and revise the Foreign Intelligence Surveillance Act (FISA). He would have been better off politically, and the nation would have been better off constitutionally, had he sought statutory authority for both, as eventually he was forced to do.
Notwithstanding this record and its lessons, Fatovic continues to counsel: “there are so many imponderables that extralegal action may still be necessary to avert an imminent catastrophe, limit its damage, or manage the governmental response” (p.259). Why? He argues that an emergency “is always a singular event that defies comparison” (p.259). Probably true, but the devastation of Katrina on New Orleans and surrounding territories did not require the invocation of presidential inherent power or extralegal actions, nor did the economic meltdown of 2008. Each crisis was unexpected in its severity, but existing statutory authority or new legislation proved sufficient. There was no need for secret or unconstitutional actions by the President. Fatovic argues that “an extralegal approach might be less likely to have long-lasting deleterious effects on political institutions” (p.263). He does not explain why. The damage of unilateral actions by President Bush in creating military commissions and surreptitiously conducting warrantless surveillance came at great cost to the administration and the nation.
By the end of the book, Fatovic seems ready to jettison high hopes for a virtuous President. Because of the rise of party politics, it is “nearly impossible for any presidential candidate to make a plausible claim of distinterestedness or bipartisanship” (p.266). President Clinton was damaged by “his persistent deception and obfuscation” in the Monica Lewinsky affair, while President Bush II “developed a reputation for dishonesty” (pp.270-71). The record of Presidents over the last half century offers little evidence of virtue or even competence. On the last page of the book, Fatovic pins his hopes on the virtue of citizens capable of assessing the performance of elected leaders and being able and willing to “challenge abuses of the power they entrust to their leaders” (p.276). On that note, the American framers would likely nod their approval.
REFERENCES:
Fisher, Louis. 2011. “John Yoo and the Republic.” 41 PRESIDENTIAL STUDIES QUARTERLY 177.