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This chapter focuses on the president's use of prerogative powers and the treatment of detainees in the war on terror. President Bush asserted his prerogative power in interpreting and reinterpreting conventions and customary international law obligations, and in interpreting the obligations of government officials to execute faithfully statute law, the Uniform Code of Military Justice, and various directives. It is argued that officials at the highest levels of government made decisions based on the constitutional authority of the president (as administration lawyers defined it) that left open the probability that detainees would be subjected to inhuman treatment and torture as defined by international law. The chapter explores why the issue of the treatment of prisoners has not risen to the level of an Iran-Contra affair and what the reaction tells us about the politics of prerogative power.

This chapter examines the origins of modern government's power of potentia. It argues that this governmental power of potentia initially operated by exploiting the residue of lordship and feudal rights contained within the modern idea of rulership. These feudal and regal rights collectively made up the prerogative powers of the ruler and although in the course of modernization the exercise of these prerogative powers of the king were restricted by constitutional arrangements, these limitations were never entirely comprehensive. With the growth in the responsibilities of modern governments, then, these prerogative powers were exploited. By examining the nature and continuing influence of prerogative powers in modern government, the chapter reveals the ambiguous character of power relations within modern constitutional settlements.

This chapter looks at the prerogative powers and judicial scrutiny of the Crown in Great Britain. It traces the development of the courts' willingness to extend the net of review over the power of central government, including the powers exercised by virtue of prerogative. It suggests that the history of the Crown and the court can be summarized into four main steps. These include the courts' adoption of a narrow basis of review, the courts' acceptance of their ability to reviews of a body established under prerogative powers, and the precise definition of prerogative powers.

This chapter explores the history of the prerogative from both a legal and a political perspective, arguing that the legal history of the prerogative is best understood in terms of structural constitutional review. The essence of the argument is that the courts have been forced to draw the boundaries of constitutional competence as between the executive and Parliament, and that they have consistently backed Parliament. The legal analysis is complemented by an examination of the prerogative from a political perspective. The nature of this inquiry and its purpose should be made clear at the outset. Given that the judicial focus was concerned with demarcating the respective spheres of competence of Crown and Parliament, it seems interesting, to say the very least, to examine the way in which these boundaries were being altered as a result of political developments. It is shown that, while the courts gave important judgments which strengthened the role of Parliament by adjudicating upon the extent of prerogative power, Parliament itself sought to constrain both the extent and manner of exercise of prerogative power in the 17th and 18th centuries. Its success in this venture served to alter the balance of power within the political order fundamentally.

This chapter focuses on the British constitution and considers the origins and application of prerogative powers in decisions to deploy British forces to conflict and post-conflict zones. The roles of the executive, legislative, and judicial branches of government are outlined. The traditional dominance of the executive (in reality smaller groupings of the Cabinet in formal committees or informal arrangements) is considered, as is the role of Parliament, which appears to have increased in recent years. The current discussion as to whether this should culminate in Parliamentary approval being given before the deployment of troops is outlined at this stage, and the reasons for it returned to in later chapters, before being fully debated and concluded on in Chapter 11 The slow encroachment of the judiciary into other aspects of the royal prerogative is contrasted with the reserved domain of foreign affairs and the deployment of troops.

This chapter focuses on the Convention and the Committee of Detail that addressed and allocated every prerogative power of the Crown to the president or to Congress or denied the power to the national government altogether. It looks at the significant categories of prerogative power and emphasizes that the framers' treatment of lesser powers is often interesting and revealing. It also mentions the Habeas Corpus Acts of 1640 and 1679 that effectively ended the practice of early monarchs asserting authority to imprison subjects without legal redress by guaranteeing judicial review. The chapter reviews the substantial prerogative powers of the king in his capacity as the supreme governor of the “Church by Law Established.” It identifies the prerogative powers that devolved upon the United States and eventually became nongovernmental.

This chapter desribes the impact of constitutional reform on the status of the Crown in Great Britain. It explains the distinction between three types of prerogative powers, which are the Queen's constitutional prerogatives, the legal prerogatives, and those prerogatives that provide ministers with executive authority. It suggests that one of the major results of reform was freeing the courts from inhibitions that still surround judicial policing of prerogative authority.

This chapter recalls the fundamental structural decisions made by the Committee of Detail about the powers of the executive, such as allocating the established prerogative powers of the British executive to Congress or to the president. It examines the important changes by the Convention in parceling out prerogative powers, which subjected some of them to senatorial advice and consent. It also talks about the Committee beginning of Article II with a sentence vesting the “Executive Power” in a single person — the president. The chapter investigates the Executive Vesting Clause that has engendered lively debate since the earliest years of the republic and caused the Supreme Court to grapple with the two possible meanings for it. It argues that the Vesting Clause vests all national powers of an executive nature in the president, except for that portion of the executive power that is vested elsewhere.

This chapter on presidential powers first analyzes three concepts that go beyond powers expressly stated: “implied,” “inherent,” and “prerogative.” It then considers specific presidential powers, such as the power to remove executive officials and to issue pardons. Presidential powers wax and wane depending on who occupies the Oval Office; initiatives urged by advisers and supporters, national, and international pressures; popular support (and lack thereof); and actions taken by the legislative and judicial branches to encourage or curb executive power.

This chapter presents three main arguments. First, it argues that the Jefferson–Lincoln conception of prerogative power—most notably, executive action in open defiance of law or legal authority—is no longer part of a president's justificatory tool kit. The second argument is that exercises of lawless executive power based on a mistaken interpretation of law are fundamentally different from exercises of prerogative power. Third, it is argued that the real evil in modern presidential emergency powers, and the main obstacle to executive branch accountability in the current era of secret war, is not prerogative power, but rather executive auto-interpretation of executive authorities, and in particular secret executive branch interpretation of law. The chapter sketches some causes of and potential remedies to this problem, as well as the costs of such remedies.

This chapter reviews Article II's organization according to the nature of presidential powers: prerogative powers, qualified prerogative powers, powers or duties involving limited discretion, defeasible residual powers, or delegated powers. It analyzes the structure of Article II by two key variables: whether a presidential power derives from the Constitution or a statute, and whether it is defeasible or not. It also mentions Justice Robert Jackson's three-part framework in his concurrence in the Steel Seizure Case, which was adopted by a unanimous Court in Dames & Moore v. Regan. The chapter considers the Steel Seizure concurrence as a prime reason modern separation of powers jurisprudence is in disarray. It cites Jackson's claim that presidential powers are not fixed, but fluctuate, depending upon their disjunction or conjunction with those of Congress.

The conduct of foreign affairs is an executive act of government in which neither the Queen nor Parliament has any part. It is the Government which represents the State and determines its policy, though Parliament has the right and the power to control the Executive, to withhold confidence in it, to refuse to grant the financial resources required to carry out its decisions, and thus to deprive the Government's foreign policy of efficacy. Hence the Government must be certain that its foreign policy has the support of Parliament. The affairs which the Crown conducts comprise the whole catalogue of relations with foreign nations which includes the declaration of war and peace, of belligerency and neutrality, and the recognition of foreign States and of their extinction. The law can control the conduct of foreign affairs if and in so far as the prerogative has been superseded by legislation, but even where this has happened there usually remains a residue of prerogative power vested in the Executive.

This chapter examines the legal nature and position of the Crown and its ministers and law officers in Great Britain. The Crown has always been immune from legal process at common law but this immunity does not extend to ministers and Crown officers, who were liable personally in law for anything unlawful that they did. Until twenty or thirty years ago, it was accepted doctrine that, although the courts had jurisdiction to decide what was the nature and the limits of the prerogative powers of the Crown, the exercise of discretion within those limits was something that no court could question.

Chapter 5 first argues that the subjective test for entrapment is a theoretically and practically untenable method of evaluating sting operations: the test is based upon a decision procedure that gives rise to questions about the metaphysics of counterfactual conditionals, which raise more pressing epistemological, ethical, and political problems. Accordingly, the second goal of this chapter is to examine the limits of sting operations more broadly. This is done by examining the extent to which the police are justified in using discretionary power to break what would otherwise be the law. The chapter concludes by setting forth a theory regarding the limits of such powers—limits that correspond to the limits of executive national security emergency powers in the liberal tradition. The upshot is that any theory of entrapment and sting operations must exist within the broader constraints upon the police’s power to break the law.

Leadership authority often receives its strongest endorsement when leaders have to engage with actions, interests, systems, and other leaders beyond the water’s edge. This chapter focuses on the stimulus–response processes of the external world in respect to leadership’s responsibilities in foreign policy and more generally in system adaptation towards a wider environment. By dividing the analysis into three main areas (i.e. responsibility, need, and choice), the chapter surveys a range of key themes including prerogative powers, executive discretion, leadership immunities, secret resources, foreign policy doctrines, emergency measures, and crisis management. Leadership motivations and the allure of the international stage are also considered in respect to national interest appeal, ‘rally-round-the-flag’ effects, specialist competences, extra-constitutional roles, and association with transnational issues that supersede domestic concerns.

The facts, circumstances, and events which lie at the root of foreign affairs and their conduct by the Executive have conveniently been described as facts of State. These are facts which are peculiarly within the cognisance of the Executive. For this reason, at any rate in so far as they are within the scope of the United Kingdom's Executive, they can be proved only in a special manner, namely by a certificate issued by the Foreign and Commonwealth Office or by a statement made to the court by the Attorney-General rather than by other documentary or oral evidence. The idea underlying this practice is the familiar one: in matters relating to foreign affairs the judiciary and the Executive should speak with one voice. The scope of prerogative power is discussed, covering territory; state of war, belligerency, and neutrality; civil war or insurgency, immunity, abolition of a state, and government of a recognized state.

The law relating to the scope of judicial review of administrative action is somewhat unclear and has a particular tendency to be decided on a case-by-case basis. Indeed, amenability to judicial review will often turn on the application of particular constitutional, statutory or regulatory provisions: in Australia and Canada, for instance, there are multiple judicial review jurisdictions, at federal and state/provincial/territorial level, each with their own idiosyncrasies. This chapter argues, nonetheless, that administrative law values are helpful in understanding the decided cases, with individual self-realisation, good administration, electoral legitimacy and decisional autonomy providing meaningful guidance in navigating the jurisprudence. This chapter also offers some suggestions as to how the law relating to scope of judicial review could be improved, further underscoring how useful it is to understand the law of judicial review of administrative action in terms of administrative law values.

Chapter 2 provides the theoretical framework for a comparative study of clemency in death penalty cases. It begins by clarifying the terminology used throughout the book, including the local terms used in Southeast Asian legal systems for executive ‘clemency’. Then, drawing in particular from the work of Douglas Hay et al (1975), Leslie Sebba (1977a; 1977b); Kathleen Dean Moore (1989), Daniel Kobil (1991; 2003; 2007), Elizabeth Rapaport (1998–2000; 2001), and Austin Sarat (2005; 2008), Chapter 2 suggests four models of clemency in death penalty cases, based upon the previous academic literature: (1) ‘mercy from the sovereign’ granted solely for the ruler’s benefit; (2) retributivist clemency; (3) redemptive clemency; and (4) clemency for political benefit or utilitarian reasons. Finally, Chapter 2 also summarizes the results of the few multi-jurisdictional studies on capital clemency conducted in the past (e.g. Turrell 2000; Pascoe 2017b; Sebba 1977b; Baumgartner and Morris 2001; The Parliamentary Monitoring Group 2004; Dascalu 2012; Novak 2015; Strange 1996; Tait 2000–1), together with factors that the theoretical literature suggests may contribute to clemency frequency or scarcity. In summary, the theoretical and empirical literature points to the following potential determinants of death penalty clemency: political regime, separation of powers, clemency decision-making structure, structural opportunities for leniency at earlier phases, procedural idiosyncrasies in the criminal justice system, time spent on death row, and predominant religion.