Emergency Presidential Powers
In 458 BC, Lucius Quinctius Cincinnatus was plowing his land when a group of senators came to him to inform him of his election as dictator. Cincinnatus was vested with large powers to protect Rome against the current tribal invasion, which he swiftly suppressed. After disbanding the army, Cincinnatus returned to the plow – just fifteen days after being granted absolute control. History books are rich with examples of nations across the world and throughout history that resorted to a consolidation of executive power to face exceptional circumstances.
The instance of war lends itself particularly well to the reinforcement of executive power. As such, a considerable number of nations have their formal head of state assume the role of Commander in Chief – amongst them the United States of America.[1] However, when a catastrophe with all the attributes of war – short of being war itself – afflicts the nation, wartime presidential authority is not necessarily appropriate. Thus, while constitutional emergency provisions have historically provided the legal mandate for heads of state to carry out projects of war, they are ill-suited to answer non-martial crises.
While there is no specific mention of the term “emergency” in the United States Constitution, there is evidence that the Framers had considered alterations to the normal workings of the federal government when the situation warranted it.[2] Additionally, the Constitution delineates certain exceptions to general rules for emergency situations.[3] All these provisions relate directly to armed conflict that pose a threat to the existence of the nation, let it be through rebellion or war. In keeping with a narrow yet reasonable interpretation of the Constitution, it can reasonably be argued that the specific mention of emergency situations suggest that the Constitution shall never be suspended, since it was meant to function during even the most uncertain times.[4] Still, Lincoln’s unilateral decision to suspend the writ of habeas corpus during the Civil War, which was approved by Congress only months later,[5] indicates that a generous reading of the power-granting clauses of the Constitution is equally plausible. In the words of Chief Justice Hughes, the power to wage war “is a power to wage war successfully.”[6]
In its assessment of the legality of the executive’s military functions, the courts have usually erred on the side of laissez-faire at the time of the emergency, only to subsequently revise their decisions when they were retroactively deemed unreasonable.[7][8] Korematsu v. United States is a textbook example of the willingness of the Supreme Court to allow the president to carry out the measures deemed necessary during the war effort, even if those measures involve the stringent curtailing of the most basic individual freedoms.[9] This decision, which deemed constitutional the preventive internment of American citizens of Japanese descent, was later disavowed as having “no place in law under the Constitution.”[10]
Emergencies need not necessarily arise in the sole context of war. While the Court sustained in 1929 the wartime Lever Act granting the President the power to fix the price of coal,[11] it rejected the invocation of an emergency exception to the limitation on the federal regulation of commerce in A.L.A Schechter Poultry Corp v. U.S.[12] In its subsequent dissociation from Lochner era limitations on federal regulation, the Court relied on an expansive reading of the commerce clause to sustain the constitutionality of emergency economic measures surrounding the New Deal. In sum, constitutional emergency powers in wartime have been interpreted broadly, with the Court granting considerable discretion to the executive and only correcting itself after the fact. Economic emergency measures, on the other hand, found their justification in the commerce clause.
At the time of the writing of this article, the United States is facing an unprecedented health emergency. The ensuing economic emergency will most likely be addressed to minimize damage, to the extent possible under the commerce clause. But the executive branch of the government, being one of enumerated powers, does not have a constitutional mandate to take the draconian measures that may be necessary to address the current emergency – because this is not a war, even if we start referring to the disease as the “invisible enemy.”[13] Likewise, the “war on drugs,” the “war on crime,” and the “war on terror” were not actual wars, but mere rhetorical devices meant to highlight the extraordinary nature of the circumstances that demanded the government involvement.[14]
The National Emergencies Act (NEA) of 1976 was created to establish a uniform and coherent procedure to grant the President special powers to face an emergency.[15] On the one hand, NEA’s application seems to only serve as a dramatization of an event – a political tool that turns an event into an emergency rather than addressing it.[16] This is possible because the NEA does not define what constitutes a national emergency. As such, sixteen states and various organizations have sued President Trump over his proclamation of a national emergency at the southern border in February 2019, claiming that he had overstepped his authority.[17] On the other hand, the powers available to the President upon declaration of a national emergency are excessively dramatic. The President can potentially freeze Americans’ bank accounts, shut down major lines of communication, or even divert billions of dollars for construction of a wall at the border.[18] The failure of the NEA is even more flagrant when considering the fact that Congress – which is supposed to meet every 6 months to consider a vote on the termination of a state of emergency – has never done so, leaving us with 34 states of emergency currently in effect.[19] Congress’ excessive historical reliance on the good faith and expertise of the President may need to be reassessed.
It should bring some reassurance to know that the current health situation in the United States is also covered by the Public Health Service Act, which contains applications more narrowly tailored to a pandemic.[20] Still, the chaotic and unpredictable nature of emergencies requires the utmost confidence in the government’s ability to respond in a measured and effective fashion. Alternatives to the NEA, including constitutional amendment, should be considered.
Allowing common-law like reasoning, where the constitutionality of presidential actions is sustained during a time of emergency only to subsequently repudiate said actions and claim the return to the normal workings of the government is not sustainable. Such a habit could leave an embarrassing stain on the jurisprudential corpus (recall Korematsu). Nor should we subscribe to the idea that actions taken during times of emergency are outside of the law – and therefore, inconsequential to our jurisprudence – because, well, being outside of the law is what a dictatorship is.[21] A Roman dictatorship would certainly not be an effective way of addressing our modern emergencies. Nevertheless, while many democracies have constitutional provisions that address just that, the framework presented by the NEA has fallen short of this standard.
[1] Article II, § 2.
[2] Article I, § 8, gives Congress the power to declare war, raise and support armies, and provide and maintain a navy. It also provides for the calling forth of a militia to execute the laws of the Union, to suppress insurrections, and to repel invasions.
[3] Article I, § 9, clause 2: “the privilege of the habeas corpus shall not be suspended by Congress unless when in cases of rebellion or invasion the public safety may require it.” Furthermore, the Fifth Amendment provides an exception for the prohibition against capital punishment without an indictment by a grand jury in “cases arising in the land or naval forces.” Finally, no state may engage in war “unless actually invaded, or in such imminent Danger as will not admit of delay.”
[4] Jules Lobel, "Emergency Power and the Decline of Liberalism,” Yale Law Review 98 (1989): 1388.
[5] Giorgio Agamben, State of Exception (Chicago, University of Chicago Press, 2005), 20.
[6] William B. Fisch, "Emergency in the Constitutional Law of the United States," The American Journal of Comparative Law 38 (1990): 393.
[7] Bruce Ackerman, "The Emergency Constitution," The Yale Law Journal 113, no. 5 (2004): 1042.
[8] For a counterexample, see Youngstown Sheet & Tube Co. v. Sawyer (1952). The Court denied President Truman the authority to seize steel mills crucial to the war effort in Korea, citing the lack of congressional approval. The unpopularity of the Korean war could have influenced the decision of the Supreme Court, which suggests a limit to its tendency to defer to the executive in times of emergency.
[9] Korematsu v. United States, 323 U. S. 214 (1944).
[10] Trump v. Hawaii, 585 U.S. (2018).
[11] Highland v. Russel & Snow Plow Co. (1935)
[12] Fisch, 397-8.
[13] On Twitter, President Trump has repeatedly referred to the virus causing COVID-19 as “the invisible enemy.”
[14] Ackerman, 1034.
[15] Jennifer Elsea and Library of Congress, Congressional Research Service Issuing Body, Definition of National Emergency under the National Emergencies Act, 2018.
[16] Elizabeth Goitein, “The Alarming Scope of the President’s Emergency Powers,” The Atlantic, January/February 2019.
[17] Definition of National Emergency under the National Emergencies Act, 2018.
[18] Goitein, “The Alarming Scope.”
[19] Ibid.
[20] President Donald J. Trump, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, 2020.
[21] Ackerman, 1040-4.