Executive Power Is Not a Toy for Private Quarrels

The scene, as it is reported, is narrow in circumstance yet large in principle. A president, publicly dissatisfied with one of his own officers over the handling of “Reflecting Pool” matters, keeps pressure upon her even as those cases collapse. A former senior official marvels that, with an election near, he is “still wasting even a moment thinking about the Reflecting Pool.” His own attorney general answers questions about her future not by explaining any rule or public justification, but by saying simply that the president understands he has the power to fire anybody within his administration. Thus the question is presented in its plainest form: when may a magistrate lawfully use such power, and when does it become mere will?

I must begin, as I did in the Second Treatise, from the original of all political power. Men are by nature free, equal, and independent, subject only to the law of nature, which is reason teaching that no one ought to harm another in his life, liberty, or possessions. They quit this state and form a commonwealth for one chief end: the secure and steady preservation of their property, understood in that wide sense of lives, liberties, and estates. Whatever power they confer on governors is therefore held on trust, to be exercised only for that end, and in such known ways that every man may understand his condition under it. A bare assertion of power, severed from its end and from settled rule, is not the voice of lawful government; it is only force speaking in a louder tone.

Here the attorney general, whose office should interpret and apply the law, is reported as answering a matter of high discretion with a maxim of naked authority. If the only rule produced is that the president “has the power to” dismiss any subordinate, we have before us not an explanation but a confession. To direct the work of officers, and for good cause to remove them, belongs indeed to the executive; but power defined only by its breadth, and not by the purposes and conditions of its exercise, is what I called arbitrary. When such power is defended by reciting how far it reaches, rather than why it is used in this instance for the common good, it begins to look less like a trust and more like a possession.

I allowed, when I wrote on prerogative, that the executive must sometimes act without a standing rule, or even against the letter of it, when the public good manifestly requires a speed and flexibility the laws did not foresee. This, however, was no grant of a right to indulge resentment, reward flatterers, or manage the people’s servants chiefly with an eye to elections. Prerogative is but a latitude of judgment committed to one man for the benefit of all, and remains always revocable by those who gave it. It is tolerable only while the people may plainly see that it is employed for their safety, and not for the advantage or vindication of the magistrate himself. The moment the reasons for its exercise withdraw into his breast, the people are left with a will, not a law.

In this business of the Reflecting Pool I confess the record laid before me is thin. I do not know what that project was, nor wherein the cases concerning it consist, nor by what fault or mischance they failed. Yet even in this ignorance, one thing is clear from the report: the dispute is entangled with internal quarrels and past prosecutions, and public explanation is replaced by jibes that an officer “folded like an umbrella,” and by courtiers’ anger over who did or did not fire a particular prosecutor. When pressure is applied in that atmosphere, and justified only by pointing to an undoubted legal power to dismiss, reasonable men must ask whether the measure serves the people’s protection or certain men’s animosities. If the latter, it carries the marks of usurpation, however lawful the form.

No single dismissal, no one instance of pressure, makes yet a tyranny. But when rulers accustom themselves to think that, because they can do a thing, they need not give account how it conduces to the public good, they prepare that long train of abuses by which a free people comes at last to suspect that power has slipped the bridle of consent. The first duty of any magistrate in such a case is not to boast of his reach, but to show, openly and intelligibly, how his action serves the preservation of everyone’s property, and by what impartial rule it is guided. Where he will not, or cannot, offer such a justification, those subject to his will are right to withhold their inward assent, and to remember that all authority is but a trust held from them, and answerable, in the end, to them.