The Congress of Vienna, Jean Godefroy

James Madison and the Emergency Powers of the Leglislature

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Clement Fatovic

1.1 (2016)

Pages 67-94


Prerogative, the power to take extra-legal measures in extraordinary circumstances, is generally considered to be the exclusive domain of the executive. This article shows that James Madison, who is widely regarded as hostile to discretionary power in the executive, not only endorsed exercises of prerogative by the executive but also took steps toward developing a model of prerogative that gives primacy to the legislature in times of emergency. Madison’s views on “legislative prerogative” emerged in the context of congressional debates over avowedly unconstitutional proposals including a grant of military authority to seize private property during the revolutionary war, the creation of the Bank of North America under the Articles of Confederation, and the provision of financial assistance to refugees from St. Domingo. These cases reveal a strict constructionist resorting to extra-legal measures to pursue objectives not expressly authorized by the constitution then in place as a safer alternative to more permanent expansions of government power established through law.