Executive power

(Hat tip: Bill Keezer.)

Executive power was a big topic during the Alito hearings, with a great deal of "concern" directed at the question of whether Alito would vote to keep it in check.

Part of the problem is that people are not clear on what the limits of this power properly are. In the Weekly Standard, Harvey Mansfield makes the case that executive power extends beyond the scope of the laws passed by Congress, and grants the ability to do things perhaps not allowed by these laws.

One reasons for this is that the executive may have to deal with matters that aren't addressible by law.

A republic like ours is always more at ease in dealing with criminals than with enemies. Criminals violate the law, and the law can be vindicated with police, prosecutors, juries, and judges who stay within the law: At least for the most part, the law vindicates itself. Enemies, however, not merely violate but oppose the law. They oppose our law and want to replace it with theirs. To counter enemies, a republic must have and use force adequate to a greater threat than comes from criminals, who may be quite patriotic if not public-spirited, and have nothing against the law when applied to others besides themselves. But enemies, being extra-legal, need to be faced with extra-legal force. [Emphasis added.]

Of course, this leads to problems of its own:

Yet the rule of law is not enough to run a government. Any set of standing rules is liable to encounter an emergency requiring an exception from the rule or an improvised response when no rule exists. In Machiavelli's terms, ordinary power needs to be supplemented or corrected by the extraordinary power of a prince, using wise discretion. "Necessity knows no law" is a maxim everyone admits, and takes advantage of, when in need. Small-r republicans especially are reluctant to accept it because they see that wise discretion opens the door to unwise discretion. But there is no way to draw a line between the wise and the unwise without making a law (or something like it) and thus returning to the inflexibility of the rule of law. We need both the rule of law and the power to escape it--and that twofold need is just what the Constitution provides for.

And this tension is why the character of the person who holds the office of President matters, and matters more than anything else.