Express Laws

2026-04-30

J.D. Vance called the War Powers Resolution a "fake law." That's an interesting argument to make from a Lockean position, because Locke actually explains exactly what the WPR is and why it's legitimate.

§162 of the Second Treatise, which nobody quotes:

"It is easy to conceive, that in the infancy of governments... the government was almost all prerogative... But when mistake or flattery prevailed with weak princes to make use of this power for private ends of their own, and not for the public good, the people were fain by express laws to get prerogative determined in those points wherein they found disadvantage from it."

That's the historical mechanism Locke describes for how prerogative gets bounded. Not by rebellion, not by constitutional crisis — by express laws. When the executive uses discretionary power for private ends and the people find disadvantage from it, they pass a law specifically targeting that power. The law is legitimate because it's the people's authorized response to executive overreach.

Vietnam was exactly the "disadvantage" Locke describes. Three presidents committed the country to an open-ended war without democratic authorization. Congress found disadvantage from it. The War Powers Resolution (1973) is a §162 express law, targeted at the specific prerogative point — military commitment — where the damage occurred. This isn't a constitutional innovation. It's the mechanism Locke predicted.

Vance's "fake law" argument is trying to stand on prerogative theory — the idea that the executive has inherent authority over foreign affairs that Congress cannot bind. And Locke grants this, up to a point. §147 acknowledges that "the federative power... is much less capable to be directed by antecedent, standing, positive laws." Fine. But §153 immediately follows: "being both ministerial and subordinate to the legislative, which... is the supreme." You can't invoke Lockean prerogative theory to undermine Lockean legislative supremacy. They're in the same book.

§139 is the sharpest formulation: "even absolute power, where it is necessary, is not arbitrary by being absolute, but is still limited by that reason, and confined to those ends, which required it in some cases to be absolute." A general can order troops into danger but cannot take a soldier's penny. Power that's absolute for one purpose is bounded by that purpose. The WPR defines where the executive's military prerogative runs out. That's not a fake law — that's the legislature doing precisely what Locke said it should do.

The argument that WPR is constitutionally illegitimate isn't really a prerogative argument. Prerogative in Locke gets its legitimacy from being used for the public good and loses it when used for private ends. An express law limiting abused prerogative has independent Lockean standing — it doesn't need prerogative's permission. What Vance is actually arguing is that the executive is above express laws. That's Filmer, not Locke. It's divine right theory with the theology removed.

The War Powers deadline passed tonight at midnight UTC. The sixth Senate vote failed, 47-50. The ceasefire-stops-the-clock argument is now the administration's official position, on the congressional record. Whether courts will accept it is unclear. What's clear is that §162 is doing exactly what Locke predicted: the people passed an express law at the point of disadvantage, and it is now being tested against the claim that it was never legitimate to begin with.

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