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Deducing a Legalized Approach to the Exceptional Who, Not What, and Until When? Michael K. Hanley Princeton University

National emergencies situations that tend to bend, not break the functioning of a constitutional order represent a class of issues commonly faced by the heads of a state. Executives have often taken this opportunity to yield unilateral power over the other branches of government, with quite divergent results. While the extralegal nature of Lincolns executive power in the Emancipation Proclamation is often overlooked in favor of its moral content, Hitlers rather legal use of executive powers lead to one of the most morally abhorrent periods of modern history. Given that these powers were conceived whether theoretically or in law due to an assumed need for extraordinary responses to extraordinary circumstances, how can we continue to have faith in a constitutional rule of law that assumes its own inapplicability in certain circumstances? Can we do better, and legislate some form of emergency powers that both address crises generally and conform to the norms of constitutionalism? This paper seeks to consider both the permissibility of emergency powers within a constitutional order, as well as the extent to which different strategies for legalizing these measures will mediate the potential for abuse. The first part of this inquiry will outline a spectrum of four possible levels for permitting these powers, classifying emergency powers as either (a) never permissible, (b) permissible only with strictly legalized procedures, (c) allowable only when post-emergency measures allow for the evaluation of their use or abuse during the crisis (the leap, then look back approach), or (d) permissible whenever the executive deems them as necessary. Using both the legal philosophies of Carl Schmitt and Kant, as well as historical case studies within the US and Germany, I seek to narrow in on a position along the spectrum that falls in between positions (b) and (c). This position will necessitate a

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consideration of legalization strategies with varying levels of positivist specificity. Here, it becomes necessary to find a level of legalization that best compromises between the need for efficiency in emergencies and the mitigation of potential abuses. Ultimately, I will argue that several general considerations coined collectively as the who, not what, and until when approach can be codified to ensure that emergency powers conform to constitutional principles, namely (i) the requirement that emergency powers be wielded not only by an executive, but rather by a multilateral committee representing all branches of government; (ii) that emergency powers are not allowed to amend the constitutional or override articles containing basic rights; and (iii) that crisis responses have sunset clauses, and the paradigm of post-crisis action be changed so as to retroactively evaluate and learn from the measures taken in emergency response. Ensuring these considerations represents the best way to ensure that emergency powers represent a narrow exception that aims towards conserving constitutional ideals. Before we can start considering specific cases or theories of emergency powers, it seems necessary to form a model of conceptualizing the different extents to which emergency powers have been argued or applied as permissible. Not only does this step provide us with more concrete alternatives, but it also allows us to place various uses of emergency power in relation to one another for comparison. The spectrum is presented below:

Figure 1: Spectrum of Permissibility of Emergency Powers

Within the model, the points along the spectrum represent the alternatives outlined above, increasing in permissibility from left to right: (a) never allowed, (b) allowed only with strict legal measures, (c) the leap, then look back approach, and (d) allowable when the executive deems it

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necessary. Important to note, however, is the fact that these alternatives fall within a spectrum, with the specific effect depending on several case-by-case considerations. Between (a) and (b), one may question the extent to which the legalization either restricts executive power, or makes the process of declaring a state of emergency more streamlined, as has occurred in the US. Between (b) and (c), one might consider the specificity of restrictions, and whether they focus on the processes of declaring emergencies, or define principled laws that detail the use of emergency powers in general. Between (c) and (d) we arrive in territory that is absent of law, which questions whether we ought to hold leaders morally accountable. Particularly of interest is the section where exceptional necessity overlaps with legalization, the area on which I will argue policy on emergency powers should focus. Given this model, we can begin to narrow in on some more concrete and viable alternatives, using case studies and legal theory. Let us first start on the easy case, that against the prohibition of emergency powers. As Carl Schmitt notes, emergency law has no place in rationalist theories such as Kant, which would not allow a suspension of the law to achieve an end that that law itself cannot obtain. The situational nature of emergencies make completely legalizing them impossible, and extralegal measures would thus be the only means of response. From here, Schmitt argues that these situations require a sovereign, who produces and guarantees the situation in its totality and has the monopoly to decide.1 Even sympathizers with Kant agree that some atypical action is necessary in extraordinary circumstances. In her reformulation of Kants theory, Christine Korsgaard argues that, in non-ideal circumstances, something or someone may be treated as a means, so long as the ends are proportional and

Schmitt, Carl. Definition of Sovereignty. Political Theology: Four Chapters on the Concept of Sovereignty. Chicago: Univ. of Chicago Press, 2006, pgs. 66-67.
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approximate the ideal circumstance.2 If we draw parallels to emergency crises, we see that a reformed Kantian theory would allow for extralegal means, so long as they are directly aimed at eliminating the crisis and preserving the legal order. Having established the practical and philosophical justifications for emergency power, let us move to the other extreme the sort of extralegal territory in which Carl Schmitt argues emergency powers must inherently lie. Indeed, Schmitt contends that positivist attempts to circumscribe the measures taken in an emergency still do not address the clearly exceptional nature of the issue the question of sovereignty would then be considered less significant, but would certainly not be eliminated.3 As mentioned above, since law cannot completely predict chaos, Schmitt invests unconditional power in the sovereign to decide when non-legal chaos exists, and to act in response to it.4 Yet in setting this sovereign prerogative completely apart from any sense of legal norms, Schmitt forgoes the important question of sovereign accountability. If we turn briefly back to the reformed-Kantian model, Korsgaard emphasizes that within this amoral response, care must be taken to ensure the response to the non-ideal is both proportional and approximates the ideal.5 Applied to emergencies, these constraints put a sense of culpability on the agent performing the extralegal actions. Schmitt either assumes that sovereigns will act in the public interest and with proportional means, or disregards the importance of these considerations entirely. As history has shown, a lack of clearly defined

See: Korsgaard, Christine. The Right to Lie: Kant on Dealing with Evil. Philosophy and Public Affairs. Vol. 15(4): 1986, pp. 325-349. Korsgaard specifically concerns herself with interpersonal interactions namely the famed murderer at the door example, the Formula of Humanity, and the Formula of Universal Law. I argue that the logical conclusions can be applied to Schmitts conception of the rationalist tendency in law. 3 Schmitt 65. 4 Ibid 66. 5 On the individual level, Korsgaard arrives at the condition of proportionality by conditioning the revised Formula of Humanity to the Formula of Universal Law in non-ideal circumstances. For example, we may be able to universalize lying to the murderer at the door, yet it would be difficult to universalize a less proportional response, such as killing or otherwise harming the individual (348-349).
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accountability mechanisms for emergency powers leads to a dangerous assumption of sovereign impunity. As John Deans analysis of the Watergate incident shows, the Nixon administration was operating under some assumption of sovereign impunity within a broad ability to define the situations that necessitate the use of emergency powers. In quoting an interview with Nixon, he pins the president as having said, Its quite obvious that there are certain inherently governmental activities, which if undertaken by the sovereign in protection of the interests of the nations security, are lawful, but which, if undertaken by private persons, are not.6 Using this justification of sovereign exceptionalism, Nixon went from justifying the restriction of free speech rights as executive power in ideological war over Vietnam policy, to bugging the meeting place of the Democratic National Committee to strategically ensure his reelection.7 Given that the following trial and resignation of Nixon, it seems intuitive that executive powers during states of emergency are not without bounds. Yet at the time, the law regarding the topic was vague, evidenced by the movements to streamline the procedures for declaring emergencies following Nixons resignation.8 The fact that such trials proceeded with little legal precedent shows the intuitive rejection of complete sovereign impunity with emergency powers. Having eliminated the two extremes from consideration, let us focus on the middle of the spectrum options (b), (c), and their corresponding grey areas. This leaves us with the following subsection of the original model, which displays the more moderate approaches to addressing emergency powers. This moderate spectrum is presented below:

Dean, John W., III. Watergate: What Was It? Hastings Law Journal. Vol. 51(609), 1999, pp. 609-659. Pg. 613, citing: Frost, David. I Gave Them a Sword. Behind the Scenes of the Nixon Interviews, 1978, pg. 295. 7 Dean 634-645. Here, Dean goes into impressive detail about the factors and correspondence that went into organizing the Watergate break-in. Important here is the point that this was motivated by party politics and election concerns, not a matter of national security. 8 Scheppele, Kim Lane. Small Emergencies. Georgia Law Review. Vol. 40, pp 835-862. Pp. 854-855.
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Figure 2: Spectrum of Permissibility Moderate View

Notice that the remaining section of the model leaves us with three general policy options. As indicated by the overarching conceptions of emergency powers, one of the distinguishing factors between the options is the purpose of using law. Is legal positivism an attempt to streamline a process for regarding all national emergencies (routinization), or is it meant to outline certain principles by which emergency powers must follow to preserve the constitutional order (principled restriction)? Alternatively, should we back away from legal positivism and consider post-hoc whether or not the use of emergency powers withstand moral scrutiny after the crisis (moral evaluation)? I shall consider each of these alternatives in turn. With regards to the attempt to routinize emergencies, the policies of the United States after the Nixon administration serve as a useful case study to examine this alternative. As Scheppele notes, following the resignation of Nixon, and in order to address the abuses of his administration, Congress simply wiped the slate clean of outdated emergency legislation and streamlined the procedure for declaring new emergencies under the Stafford Act (1974) and the National Emergencies Act (1974).9 Whether unintended or not, the effect of this attempt to legislate emergencies was that the executive had more means for declaring an emergency, and thus more categories of incidents would fall under the designation of national emergency and necessitate a shifting of the balance of power. Rather than restricting this constitutional provision, active legalization has actually served to increase how often the constitutional balance

Ibid 855.

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of power is in suspension.10 Before the 1974 reforms, executives would not likely have considered calling a national emergency for a severe blizzard in one state, or an overcrowded reception during an inaugural address, but would rather have resorted to regular and constitutional means to address these issues. In effect, heavy legalization seems to make it more tempting to cut constitutional corners for the sake of efficiency. Thus, heavy legalization has the result of changing the entirely of the constitutional order, a result that is not within the intended character of the American constitution.11 Having ruled out attempts to completely streamline emergency responses through law, let us examine the opposite end of this spectrum that which allows post-hoc moral and political judgments to decide whether the emergency powers were properly applied. This option carries intuitive appeal, as it seems impossible to evaluate the application of emergency measures midcrisis. Justice Jackson echoes this sentiment when, in response to the moral wrong of Japanese internment measures, he stated: If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.12 While Jacksons statement argues that the other branches are powerless to evaluate emergency powers mid-crisis, it also underscores a problematic complacency on the part of the legislature or judiciary in not establishing preemptive checks on the attainment and use of executive power in

Ibid 856. In effect, heavy legalization makes the US constitutional order more like Britains, where legislation can override the character of the constitution. Yet this is clearly not the intended character of the US constitution, which is supposed to be seen as the supreme law of the land. 12 Rossiter, Clinton. Constitutional Dictatorship. New Brunswick: Transaction Publishers, 1948. Pg. 284.
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emergencies. This strategy of complacency may work in the case of morally upright executives such as Lincoln, who issued the Emancipation Proclamation with little precedent on emergency powers, yet ultimately informed Congress and received retroactive approval for his actions.13 However, this approach, coupled with the tendency of governments to ignore emergency reforms in peacetime, leaves emergency powers at the whim of leaders like Adolf Hitler. Within Hitlers National-Socialist regime, Article 48 of the Constitution was used to alter the nature of the constitutional order to create a dual state, an order that granted judicial redress to most citizens, yet simultaneously used police power to pursue and subdue political threats.14 Frighteningly, it would be less likely that, in the moment, citizens would have taken issue with Hitlers method of emergency power, as he had been applying a loose interpretation of a constitutional article that was seeing routine use at the time, whereas Lincoln was clearly using legislative power in a loosely defined wartime setting.15 More importantly, however, the fact that the leap, then look back approach could potentially allow both of these cases to run their respective courses suggests that more must be done to mitigate the potential for abusing emergency powers. It is here that we arrive at the middle ground between routinization and moral evaluation, the establishing of principled restrictions on the use of emergency power. As Figure 2 suggests, this alternative lies in the area where legalization and exceptional necessity overlap. By this, I suggest that there are certain measures that can be legalized that both recognize the exceptional nature of a crisis, yet also outline general and prescriptive principles that detail: (i) who falls under the category of the sovereign, (ii) what limits to impose on the emergency powers, and (iii) until when the emergency powers last, and what happens once these

Rossiter 228. Rossiter outlines additional emergency powers undertaken by Lincoln, which were included in this appeal for retroactive approval by Congress. 14 Frnkel, Ernst. The Dual State. New York: Oxford Univ. Press, 1941. Pp. 38-40. 15 By loosely defined, I mean that it was not legally clear whether the first days of the Civil War constituted war or a secessionist movement that lacked legal precedent.
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powers expire. These categories the who, not what, and until when of emergency powers remain general enough to apply to national emergencies broadly, yet particular enough to ensure that specific features of a constitutional order are not undermined by concentrating too much power into one branch. I now will examine each of these considerations in turn. In considering who ought to hold emergency powers, it becomes helpful to examine the issues with traditional conceptions of emergency powers vis--vis the purposes of a constitution. Quite clearly, a constitution often aims at dividing governmental powers among distinctive branches so as to avoid the centralization of power, and as a means to provide checks on the workings of each part of government. Emergency powers, however, move away from this by concentrating powers into the hands of the executive for the sake of efficient decision-making. While these are all obvious points, stating them makes it clear that conceiving the sovereign as a committee of individuals, which represent each of the three branches, would strike a compromise between these two competing concerns.16 Such a multilateral approach would also curb the secrecy of intent that has been central to many exercises of emergency powers, such as those of the Nixon and Bush administrations, as well as the end goals of the Nazi regime. Multiple voices achievable by requiring a diverse representation of political parties would also prevent groupthink behavior that could easily occur within an administrative cabinet or a single political party. Concerning the not what section of emergency power reform, I suggest that executive power during emergencies remain subject to the text of certain constitutional articles. Specifically, I argue for an adoption of some basic hierarchy of norms, such as the German Grundgesetz, which served as the response to the Nazi regimes abuse of the Weimar

The details of the committee such as how many from each branch, what type of a vote would pass emergency legislation could remain open for debate, as the multilateral nature of the committee, and its representing all three branches, remains the key reform in this consideration.
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constitution. Establishing some subset of constitutional rights that cannot be overridden by emergency powers ensures that the most fundamental constitutional principles endure, and that the emergency powers are solely focused on responding to the crisis rather than permanently changing the legal order. Further, I recommend that amendments not be allowed while emergency powers are in effect. Such a measure would further underscore the temporary nature of the emergency vis--vis the permanence of the constitutional order. The final class of considerations revolves around the until when how long emergency powers are to last, and what ought to happen once that time expires. While the specific duration emergency power grants does not matter as much, the necessity of a sunset clause on all emergency powers with extensions if necessary and approved by a full Congress highlights the importance that these powers remain temporary and do not slowly become the continued norm, as had occurred in the US from the end of WWI until the 1970s reforms.17 Another consideration that falls under the until when section of emergency powers concerns the procedures following the expiration of powers. In order to ensure that these standards remain applicable to actual emergencies, I argue that governments must change the paradigm of reflecting back on emergencies during peacetime. Presently, the paradigm is to basically ignore the exercise of powers during a crisis in favor of focusing on peacetime policy. This strategy proved disastrous for the Weimar Republic in years following 1925-1929, when the republic failed to further specify the aspects of Article 48 that worked to bring about a period of relative prosperity.18 In borrowing look back feature of the leap, then look back, I suggest that governments prioritize the post-crisis creation of task forces that investigate the workings of

Scheppele 854. Clearly the details of this proposal, such as whether the grant lasts 30 or 31 days, or whether a strictly full Congress need be present to approve an extension, are subjected to tweaks. Again, the general point is avoiding the incidentally continued state of emergency powers created by the lack of sunset clauses. 18 Rossiter 50, 64-66.
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the emergency committee. This group would examine the actions undertaken while emergency powers were in effect, suggest small changes to the specifics of the who, not what, and until when approach,19 and hold the committee accountable to the regular constitutional order if their exercise of emergency powers violated any more fundamental tenets of the constitutional order. Through the successive elimination of possible alternatives, we have arrived at the policy for emergency powers that best represents a compromise between decisive efficiency and abuse mitigation. The establishment of preemptive and post-hoc principles that uphold the basic motives of a constitutional order simplified as the who, not what, and until when approach acknowledges the necessity of exceptional power for crisis circumstances, while simultaneously avoiding many of the pitfalls presented by a high concentration of power. It successfully prevents the changing of a constitutional order, prevents immorally motivated individuals from consolidating governmental power, and also recognizes that an inch of snow in the state of Texas does not quite constitute a national emergency.

By focusing on these three general aspects who, not what, and until when the task force would avoid making recommendations that would routinize the procedure overall.
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Works Consulted Dean, John W., III. Watergate: What Was It? Hastings Law Journal. Vol. 51(609), 1999, pp. 609-659. Frnkel, Ernst. The Dual State. New York: Oxford Univ. Press, 1941. Frost, David. I Gave Them a Sword. Behind the Scenes of the Nixon Interviews, 1978, Korsgaard, Christine. The Right to Lie: Kant on Dealing with Evil. Philosophy and Public Affairs. Vol. 15(4): 1986, pp. 325-349. Rossiter, Clinton. Constitutional Dictatorship. New Brunswick: Transaction Publishers, 1948. Scheppele, Kim Lane. Small Emergencies. Georgia Law Review. Vol. 40, pp 835-862. Pp. 854-855. Schmitt, Carl. Definition of Sovereignty. Political Theology: Four Chapters on the Concept of Sovereignty. Chicago: Univ. of Chicago Press, 2006.