At Powerline, Steven Hayward invokes John Locke (and John Yoo):
The dilemma for a responsible president in this case is simply this: Congress might well be persuaded to pass a statute explicitly authorizing the killing of people like al-Awlaki. But once there is a positive statute, there is a target for litigation. . . . . And I can easily imagine our courts striking it down as a violation of due process . . . . And then where would that leave a president faced with a menace like al-Awlaki? Maybe better, in the real world, to do it the way we are right now, even if it is untidy.
In other words, this is another indication that John Yoo was right all along. But of course if you read Yoo’s books and articles, you will soon see that all he was saying was that John Locke was right all along. This is not the first time, nor shall it be the last, when we’ll be drawn back to chapter 14 of Locke’s Second Treatise, discussing executive prerogative: “Many things there are which the law can by no means provide for. . . [I]t is fit that the laws themselves should in some cases give way to the executive power. . .”
There are at least two problems with this argument. The first is that the Constitution flatly rejects it. In saying that the “laws themselves should in some cases give way to the executive power,” Locke echoed the seventeenth century idea of the king’s “suspensive” or “dispensing” power (that is, that the king could suspend or dispense with standing laws – a power that went far beyond the power to veto newly enacted laws). By the eighteenth century, especially in America, this idea was thoroughly in disrepute. The Constitution’s Article II, Section 3 makes clear that the President does not have this prerogative power: without exception, “he shall take Care that the Laws be faithfully executed.”
The second objection is that a sweeping claim of Lockean executive power isn’t necessary to defend the al-Awlaki episode. As an earlier post suggested, a much narrower argument exists that puts the action squarely within the law: (1) the United States is in a state of war with al-Qaeda; and (2) in wartime, due process principles permit the killing of avowed enemy forces by the executive, even if they are U.S. citizens. Not everyone will accept these arguments, but they have a much stronger originalist basis that the idea that a Lockean suspensive power – especially as applied to constitutional provisions like the due process clause – is consistent with the Take Care clause.
Interestingly, though Hayward invokes John Yoo, it appears that Yoo actually takes the narrower view I’ve outlined with respect to al-Awlaki rather than relying on a Lockean suspensive power (see here).
RELATED: As further note on al-Awlaki, in discussing the originalist literature on the subject, I neglected this outstanding forthcoming article by Ryan Alford: The Rule of Law at the Crossroads: Consequences of Targeted Killing of Citizens. Professor Alford’s article is thoroughly persuasive as to the broader proposition that executive killing of citizens in general violates (and indeed was a particular target of) the due process clause. But he doesn’t persuade me that this proposition extended to wartime killing of the forces of a foreign enemy, which seems critical to a conclusion on the al-Awlaki question.
Posted at 7:00 AM