A Theory of Republican Prerogative
The events of September 11 prompted renewed debate about the three main approaches to emergency power: statutory, constitutional, and extralegal. But the central substantive problem of the extralegal approach has yet to be carefully addressed: When may the executive violate the law without a statutory or constitutional basis for doing so?
This paper identifies two principles — the privilege of republican prerogative and the obligation of a republican ethic — that combine to offer a coherent answer for certain kinds of executive lawbreaking. As its various strands have emerged from Anglo-American tradition, what I call the republican prerogative becomes available when (i) the republic faces a sudden, irregular, and existentially severe threat; (ii) the executive’s response is strictly necessary and does not exceed the scope of the exigent threat; and (iii) the executive discloses and takes responsibility for the violation. Republican prerogative may not be the only type of justifiable extralegal privilege, but it has a long (though theoretically underdeveloped) historical pedigree and a striking (though latent) coherence.
One problem remains. If the republican prerogative is extralegal in character, how can we speak intelligibly of limits on its exercise? The answer identified here emerges from what I call the republican ethic: a normative claim that our constitutional republic is an intrinsically value-bearing entity, worthy of moral consideration and creating moral obligations in its own right. On this view, the moral requirements of a republican ethic — itself grounded in a possessive embrace of our legal system — trump the legal requirements of our Constitution and laws.
Mortenson, Julian Davis. "A Theory of Republican Prerogative." S. Cal. L. Rev. 88, no. 1 (2015): 45-96.