Emergency declarations — even the small emergency declarations — have the effect of temporarily changing the balance of constitutional power in order to meet a pressing need. But if emergencies are declared often enough and cavalierly enough, the exception becomes the rule. This system of emergency action is now part and parcel of what the Constitution has come to mean — that Congress can set up a system of stand-by presidential authority to act without going back to the Congress for explicit permission in the event the president feels that something extraordinary should be done. Those of us who care about the Constitution's promise of normal non-emergency government may wonder about the wisdom of statutes and court decisions that have permitted ever-increasing powers to be wielded by an ever-more-powerful president. We have become complacent about emergency government. When confronted with a new situation — whether transnational terrorism after September 11 or unprecedented crowds in Washington for a presidential inauguration — we should first try to adapt our normal legal procedures to handle the new situations rather than creating the shortcuts and workarounds of emergency powers.
With comments by
- Deborah Pearlstein
Associate Research Scholar, Woodrow Wilson School
Visiting Faculty Fellow, University of Pennsylvania Law School
- George Kateb
William Nelson Cromwell Professor of Politics, Emeritus