In John Locke's account of separation of powers, the executive is not limited to enforcing the rules laid down by the legislature. The chief magistrate also exercises the prerogative, a power "to act according to discretion for the public good, without the prescription of the law and sometimes even against it. "Locke explained that such a discretionary power is required because "it is impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm, if they are executed with an inflexible rigor on all occasions and upon all persons that may come in their way."
Given their experience with George III, it is not surprising that the Framers of the United States Constitution failed to embrace Locke's executive prerogative. The Supreme Court, for its part, has also rejected it. "The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good times and bad," Justice Black wrote in his opinion for the Court in the Steel Seizure Case. Justice Black concluded that the President enjoys no inherent power to act in default of Congress; his authority must in every case "stem either from an act of Congress or from the Constitution itself."
The question I address in this paper is whether the conclusion reached by Justice Black in the Steel Seizure Case applies with equal force to the judicial branch of the federal government. That is to say, do principles of separation of powers embodied in the Constitution permit federal courts to exercise a "judicial prerogative" – a power to promulgate federal rules of decision "according to discretion for the public good, without the prescription of the law and sometimes even against it" – or are federal courts, like the President, constrained to act only pursuant to authority found in enacted law?
Judges | Law | Legal Profession
Thomas W. Merrill,
The Judicial Prerogative,
Pace L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3709