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Emergency powers

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Full-Text Articles in Law

Emergency Powers: Understanding The Benefits While Mitigating The Consequences, Savannah Valentine May 2023

Emergency Powers: Understanding The Benefits While Mitigating The Consequences, Savannah Valentine

University of Miami International and Comparative Law Review

This note compares the short-term benefits and long-term consequences of emergency powers using examples from several countries and offers solutions to mitigate those consequences. Historically, emergency powers were only granted in times of true crises. In those circumstances, emergency powers can serve an important purpose: to help the government run smoothly and efficiently. Unfortunately, permanent power grabs are now more common and the standard for what constitutes an emergency has weakened severely, often resulting in civil rights infringements. Possible solutions to this problem include understanding the negative effects of sunset clauses in emergency acts, increased awareness of manufactured emergencies, encouraging …


Inherent Powers And The Limits Of Public Health Fake News, Michael P. Goodyear Jul 2022

Inherent Powers And The Limits Of Public Health Fake News, Michael P. Goodyear

St. John's Law Review

(Excerpt)

In a Vero Beach, Florida, supermarket, Susan Wiles rode her motorized cart through the produce aisle. In any year other than 2020 or 2021, this would have been a routine trip to the grocery store. But in 2020, Mrs. Wiles was missing an accessory that had become ubiquitous in society during that year: a face mask. Despite causing a commotion, Mrs. Wiles stood by her decision, claiming that the concerns about COVID-19 were overblown: “I don’t fall for this. It’s not what they say it is.” Mrs. Wiles’ statement is emblematic of the year 2020. This is not the …


The Normalization Of The Exception: The Nexus Of Emergency Powers And Criminal Justice In Colonial And Postcolonial Jamaica, Jermaine Ar Young Jun 2022

The Normalization Of The Exception: The Nexus Of Emergency Powers And Criminal Justice In Colonial And Postcolonial Jamaica, Jermaine Ar Young

FIU Electronic Theses and Dissertations

Since the antiquity, the study of emergency powers has tended to revolve around the dichotomy between norm and exception, suggesting that governments follow established rules of law in ordinary circumstances and resort to extraordinary measures only in times of genuine emergency. My dissertation challenges this dichotomy by analyzing Jamaica’s colonial and post-colonial experiences with emergency powers in order to provide a different story about the norm-exception binary. In fact, Jamaica’s case shows there are no neat partitions between both spheres. Instead, what we see unfolding is the technical application of emergency provisions as legality, rule by law, rooted in continual …


A Proportionality-Based Framework For Government Regulation Of Digital Tracing Apps In Times Of Emergency, Sharon Bassan Jan 2022

A Proportionality-Based Framework For Government Regulation Of Digital Tracing Apps In Times Of Emergency, Sharon Bassan

Dickinson Law Review (2017-Present)

Times of emergency present an inherent conflict between the public interest and the preservation of individual rights. Such times require granting emergency powers to the government on behalf of the public interest and relaxing safeguards against government actions that infringe rights. The lack of theoretical framework to assess governmental decisions in times of emergency leads to a polarized and politicized discourse about potential policies, and often, to public distrust and lack of compliance.

Such a discourse was evident regarding Digital Tracing Apps (“DTAs”), which are apps installed on cellular phones to alert users that they were exposed to people who …


Reviving Liberal Constitutionalism With Originalism In Emergency Powers Doctrine, Gerald S. Dickinson Jan 2022

Reviving Liberal Constitutionalism With Originalism In Emergency Powers Doctrine, Gerald S. Dickinson

Articles

Recent scholarship suggests the executive power is, at its core, merely the power to “carry out projects defined by a prior exercise of the legislative power” and to implement “substantive legal requirements and authorities that were created somewhere else.” Few, if any, scholars, however, have drawn a link between the original understanding of the Executive Power Clause and its relationship to emergency powers doctrine under the theory of liberal constitutionalism. This Essay addresses this gap in the scholarship, and offers musings about the doctrinal and political implications of an originalist reading of the Executive Power Clause in relation to crisis …


The Public Law Paradoxes Of Climate Emergency Declarations, Jocelyn Stacey Jan 2022

The Public Law Paradoxes Of Climate Emergency Declarations, Jocelyn Stacey

All Faculty Publications

Climate emergency declarations occupy a legally-ambiguous space between emergency measure and political rhetoric. Their uncertain status in public law provides a unique opportunity to illuminate latent assumptions about emergencies and how they are regulated in law. This article analyzes climate emergency declarations in Canada, the United Kingdom, Australia and New Zealand. It argues that these climate emergency declarations reflect back a set of paradoxes about how emergencies are governed in law—paradoxes about defining the emergency, its relationship to time and who gets to respond to the emergency and how. These paradoxes productively complicate long-held and over-simplified assumptions about emergencies contained …


Tiktok Might Stop: Why The Ieepa Cannot Regulate Personal Data Privacy And The Need For A Comprehensive Solution, Alicia Faison Mar 2021

Tiktok Might Stop: Why The Ieepa Cannot Regulate Personal Data Privacy And The Need For A Comprehensive Solution, Alicia Faison

Duke Journal of Constitutional Law & Public Policy Sidebar

In August 2020, President Trump announced a ban on the popular app TikTok, citing the risk that TikTok could be sharing Americans’ personal data with the Chinese government. In doing so, President Trump used his powers under the International Emergency Economic Powers Act (IEEPA), which authorizes Presidents to impose economic sanctions in the face of a national emergency. Associating TikTok’s data mining practices with a national emergency raises interesting questions about the governance of our personal data: is there a national security risk and if so, how should data be protected? This Note argues that ineffective personal data privacy regulation …


Administrative Law In A Time Of Crisis: Comparing National Responses To Covid-19, Cary Coglianese, Neysun A. Mahboubi Jan 2021

Administrative Law In A Time Of Crisis: Comparing National Responses To Covid-19, Cary Coglianese, Neysun A. Mahboubi

All Faculty Scholarship

Beginning in early 2020, countries around the world successively and then together faced the same rapidly emerging threats from the COVID-19 virus. The shared experience of this global pandemic affords scholars and policymakers a comparative lens through which to view how differences in countries’ governance structures and administrative responses affected their ability to manage the various crisis posed by the pandemic. This article introduces a special series of essays in the Administrative Law Review written by leading administrative law experts across the globe. Case studies focus on China, Chile, Germany, Italy, New Zealand, South Africa, and the United States, as …


Energy Emergencies, Amy L. Stein Nov 2020

Energy Emergencies, Amy L. Stein

Northwestern University Law Review

Emergency powers are essential to the proper functioning of the government. Emergencies demand swift and decisive action; yet, our system of government also values deliberation and procedures. To enable such agility in a system fraught with bureaucracy, Congress frequently delegates unilateral statutory emergency powers directly to its most nimble actor: the President. The powers Congress delegates to the President are vast and varied, and often sacrifice procedural requirements in favor of expediency. Most scholars and policymakers have come to terms with this tradeoff, assuming that the need to respond quickly is outweighed by any loss of accountability.

This Article challenges …


Legal Constraint In Emergencies: Reflections On Carl Schmitt, The Covid-19 Pandemic And Singapore | Symposium On Covid-19 & Public Law, Wei Yao, Kenny Chng Jul 2020

Legal Constraint In Emergencies: Reflections On Carl Schmitt, The Covid-19 Pandemic And Singapore | Symposium On Covid-19 & Public Law, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

The controversial legal theorist Carl Schmitt’s challenge to the possibility of meaningful legal constraint on executive power in emergencies could not be more relevant in a world struggling to deal with Covid-19. Scrambling against time, governments around the world have declared states of emergency and exercised a swathe of broad executive powers in an effort to manage this highly infectious disease. In times like these, if Schmitt is indeed right that emergencies cannot be governed by law, we are on the cusp of (or perhaps have already entered) a post-law world – where the business of government is characterised by …


Energy Emergencies, Amy L. Stein Jan 2020

Energy Emergencies, Amy L. Stein

UF Law Faculty Publications

Emergency powers are essential to the proper functioning of the government. Emergencies demand swift and decisive action; yet, our system of government also values deliberation and procedures. To enable such agility in a system fraught with bureaucracy, Congress frequently delegates unilateral statutory emergency powers directly to its most nimble actor: the President. The powers Congress delegates to the President are vast and varied, and often sacrifice procedural requirements in favor of expediency. Most scholars and policymakers have come to terms with this tradeoff, assuming that the need to respond quickly is outweighed by any loss of accountability. This Article challenges …


Vulnerability, Canadian Disaster Law And The Beast, Jocelyn Stacey Jan 2018

Vulnerability, Canadian Disaster Law And The Beast, Jocelyn Stacey

All Faculty Publications

This article is the first step in a major research project on Canadian disaster law. As such, the article's first objective is to map the terrain of the law in Canada that governs disasters. To provide context for this exercise in mapping, the article focuses on the circumstances surrounding the 2016 Fort McMurray wildfire ('the Beast'). Focusing on the 'the Beast' also gives rise to the article's second objective: a critical examination of the ways in which Canadian disaster law fails to reflect foundational social science research on disaster harm. The article argues that the current framework of Canadian law …


Who Decides On Security?, Aziz Rana Dec 2014

Who Decides On Security?, Aziz Rana

Aziz Rana

Despite over six decades of reform initiatives, the overwhelming drift of security arrangements in the United States has been toward greater—not less— executive centralization and discretion. This Article explores why efforts to curb presidential prerogative have failed so consistently. It argues that while constitutional scholars have overwhelmingly focused their attention on procedural solutions, the underlying reason for the growth of emergency powers is ultimately political rather than purely legal. In particular, scholars have ignored how the basic meaning of "security" has itself shifted dramatically since World War II and the beginning of the Cold War in line with changing ideas …


Toward Comprehensive Reform Of America's Emergency Law Regime, Patrick A. Thronson Jan 2013

Toward Comprehensive Reform Of America's Emergency Law Regime, Patrick A. Thronson

University of Michigan Journal of Law Reform

Unbenownst to most Americans, the United States is presently under thirty presidentially declared states of emergency. They confer vast powers on the Executive Branch, including the ability to financially incapacitate any person or organization in the United States, seize control of the nation's communications infrastructure, mobilize military forces, expand the permissible size of the military without congressional authorization, and extend tours of duty without consent from service personnel. Declared states of emergency may also activate Presidential Emergency Action Documents and other continuity-of-government procedures, which confer powers on the President-such as the unilateral suspension of habeas corpus-that appear fundamentally opposed to …


Is An Inviolable Constitution A Suicide Pact? Historical Perspectives On An Overriding Executive Power To Protect The Salus Populi, Ryan P. Alford Aug 2012

Is An Inviolable Constitution A Suicide Pact? Historical Perspectives On An Overriding Executive Power To Protect The Salus Populi, Ryan P. Alford

Ryan P Alford

The Article posits that every constitutional order within the Western legal tradition that influenced the Framers recognized the necessity of control over executive emergency powers. It responds to the work of scholars such as Michael Stokes Paulsen, John Yoo, Eric Posner, and Adrian Vermuele, who have used historical arguments to justify strong claims about unbridled presidentialism in national security matters.

The Article demonstrates that it has always been recognized that one of the fundamental purposes of a constitution (written or unwritten) is to provide a framework for the exercise of executive power. It details how, throughout history, legal opinion has …


Who Decides On Security?, Aziz Rana Jul 2012

Who Decides On Security?, Aziz Rana

Cornell Law Faculty Publications

Despite over six decades of reform initiatives, the overwhelming drift of security arrangements in the United States has been toward greater—not less— executive centralization and discretion. This Article explores why efforts to curb presidential prerogative have failed so consistently. It argues that while constitutional scholars have overwhelmingly focused their attention on procedural solutions, the underlying reason for the growth of emergency powers is ultimately political rather than purely legal. In particular, scholars have ignored how the basic meaning of "security" has itself shifted dramatically since World War II and the beginning of the Cold War in line with changing ideas …


Emergency Powers Of The Executive: The President’S Authority When All Hell Breaks Loose, Joshua L. Friedman Jan 2012

Emergency Powers Of The Executive: The President’S Authority When All Hell Breaks Loose, Joshua L. Friedman

Journal of Law and Health

Within the perspective of Hamilton‘s admonition against limiting executive authority, this Article endeavors to generally discuss the historical and recent separation of powers issues arising with an active executive branch. Part II gives a brief overview of executive powers and their limitations: first discussing what actions are strictly executive in character, and then presenting Congress‘ attempts to question the executive‘s emergency powers and addressing the Judicial branch‘s struggle with finding a balance between judicial oversight and political question doctrine. Part III reviews specifically enumerated powers of the executive in emergencies where executive action is justified by the constitution, such as …


Constitution And "Extraconstitution": Emergency Powers In Postcolonial Pakistan And India, Anil Kalhan Dec 2009

Constitution And "Extraconstitution": Emergency Powers In Postcolonial Pakistan And India, Anil Kalhan

Anil Kalhan

This essay explores the experiences with emergency and emergency-like powers in postcolonial Pakistan and India to illustrate the ways in which constitutional and extraconstitutional states of exception can converge in their application. The experiences in Pakistan with what I term its "extraconstitution" - illustrated most recently by the state of "emergency" declared by Pervez Musharraf in 2007 - demonstrate, perhaps unsurprisingly, that extraconstitutional assertions of emergency powers can provide a ready template for authoritarian rulers to usurp power, violate fundamental rights, and transform the constitutional landscape in the guise of addressing a crisis. At the same time, the authoritarianism in …


Unaccountable? The United Nations, Emergency Powers, And The Rule Of Law, Simon Chesterman Jan 2009

Unaccountable? The United Nations, Emergency Powers, And The Rule Of Law, Simon Chesterman

Vanderbilt Journal of Transnational Law

For a body committed to the rule of law in theory, the applicability of the rule of law to the United Nations in practice remains oddly unclear. This Article will not consider the personal responsibility of UN officials, who generally enjoy personal or functional immunity from legal process in the territories where they work. Rather the focus of this Article is on the quasi-constitutional question of the liability of the organization itself. As the United Nations has assumed more state-like functions-in particular through the coercive activities of its Security Council--the question of what limits exist on the powers thus exercised …


Weakening The Bill Of Rights: A Victory For Terrorism, Stephen Reinhardt Apr 2008

Weakening The Bill Of Rights: A Victory For Terrorism, Stephen Reinhardt

Michigan Law Review

What is most remarkable about Richard Posner's latest book-and he has written many-is that he argues that we should repose full confidence in the executive branch to handle the most sensitive constitutional issues of our time without once mentioning the flagrant breaches of law and critical falsehoods with which President Bush and his administration have deluged the public since 9/11. This only seven years after he composed a lengthy tome regarding President Clinton's impeachment in which he appropriately, if harshly, condemned the president for his unethical and illegal conduct, principally his deliberate lies and purposeful lack of candor with the …


Two Crises Of Confidence: Securing Non-Proliferation And The Rule Of Law Through Security Council Resolutions, Vik Kanwar Jan 2008

Two Crises Of Confidence: Securing Non-Proliferation And The Rule Of Law Through Security Council Resolutions, Vik Kanwar

Vik Kanwar

This timely article describes the powers of the United Nations Security Council as they have developed in the field of non-proliferation, and demonstrated in recent resolutions, and goes on to propose a normative framework based on the model of reciprocal “confidence-building” measures to ensure the legality and legitimacy of these resolutions.

Recent proliferation crises (concerning Iran, North Korea, and non-state proliferation networks) have led the Council draw upon various sources-- express and implied powers under the UN Charter, powers granted by specific treaties, and an unusual degree of international consensus-- to expand its powers. This paper attempts to transcend false …


Endless Emergency: The Case Of Egypt, Sadiq Reza Jan 2007

Endless Emergency: The Case Of Egypt, Sadiq Reza

Articles & Chapters

The Arab Republic of Egypt has been in a declared state of emergency continuously since 1981 and for all but three of the past fifty years. Emergency powers, military courts, and other exceptional powers are governed by longstanding statutes in Egypt and authorized by the constitution, and their use is a prominent feature ofeveryday rule there today. This essay presents Egypt as a case study in what is essentially permanent governance by emergency rule and other exceptional measures. It summarizes the history and framework ofemergency rule in Egypt, discusses the apparent purposes and consequences of that rule, mentions judicial limitations …


The Constitution As Black Box During National Emergencies: Comment On Bruce Ackerman's Before The Next Attack: Preserving Civil Liberties In An Age Of Terrorism, Martha Minow Jan 2006

The Constitution As Black Box During National Emergencies: Comment On Bruce Ackerman's Before The Next Attack: Preserving Civil Liberties In An Age Of Terrorism, Martha Minow

Fordham Law Review

No abstract provided.


We Are All Post-9/11 Now, Kim Lane Scheppele Jan 2006

We Are All Post-9/11 Now, Kim Lane Scheppele

Fordham Law Review

No abstract provided.


Self-Defeating Proposals: Ackerman On Emergency Powers, Adrian Vermeule Jan 2006

Self-Defeating Proposals: Ackerman On Emergency Powers, Adrian Vermeule

Fordham Law Review

No abstract provided.


Terrorism And The Constitutional Order, Bruce Ackerman Jan 2006

Terrorism And The Constitutional Order, Bruce Ackerman

Fordham Law Review

No abstract provided.


Moral Justification, Administrative Power And Emergencies, Re'em Segev Jan 2006

Moral Justification, Administrative Power And Emergencies, Re'em Segev

Cleveland State Law Review

Although harming people is generally wrong, it is exceptionally justified as the lesser evil when it is done to prevent sufficiently more serious harm. The two aspects of this moral truth should be reflected in the law. This is not always an easy task and is especially difficult with respect to the powers of the executive branch of government concerning emergencies. In such situations, there may be strong reasons to confer wide powers to the executive branch to perform harmful actions as the lesser evil. However, strong reasons exist to curb and check such powers. However, this problem is especially …


The Priority Of Morality: The Emergency Constitution's Blind Spot, David Cole Jan 2004

The Priority Of Morality: The Emergency Constitution's Blind Spot, David Cole

Georgetown Law Faculty Publications and Other Works

Three aspects of Bruce Ackerman’s thesis, which is a proposal to legitimate the practice of suspicionless preventive detention during emergencies, are discussed in this essay—its premises, its efficacy, and its morality. Part I critiques three of Ackerman’s premises—his underestimation of courts and overestimation of legislatures as guardians of liberty, his misguided belief that the supermajoritarian escalator provides a one-size-fits-all solution to the conundrum of emergency powers, and his contention that the short-lived character of emergencies makes it sensible to cede to a minority of our popular representatives control over critically important and largely unpredictable decisions concerning the appropriate duration of …


Judging The Next Emergency: Judicial Review And Individual Rights In Times Of Crisis, David Cole Aug 2003

Judging The Next Emergency: Judicial Review And Individual Rights In Times Of Crisis, David Cole

Michigan Law Review

As virtually every law student who studies Marbury v. Madison learns, Chief Justice John Marshall's tactical genius was to establish judicial review in a case where the result could not be challenged. As a technical matter, Marbury lost, and the executive branch won. As furious as President Jefferson reportedly was with the decision, there was nothing he could do about it, for there was no mandate to defy. The Court's decision offered no remedy for Marbury himself, whose rights were directly at issue, and whose rights the Court found had indeed been violated. But over time, it became clear that …


Preventive Detention: Prisoners, Suspected Terrorists And Permanent Emergency, Jules Lobel Jan 2003

Preventive Detention: Prisoners, Suspected Terrorists And Permanent Emergency, Jules Lobel

Articles

Central to the United States government’s strategy after the September 11th attacks has been a shift from punishing unlawful conduct to pre-empting possible or potential dangers. This strategy threatens to undermine fundamental principles of both constitutional law and international law which prohibit certain government action based on mere suspicion or perceived threat. The law normally requires that the government wait until a person or nation has committed or is attempting to commit a criminal act before it may employ force in response. The dangers of a policy of preventive detention have been analyzed from a number of perspectives. Historians have …