Powers of the President during crisesSmith, J. Malcolm (John Malcolm)
History
Powers of the President during crises
Smith, J. Malcolm (John Malcolm)
Constitutional history -- United States; Executive power -- United States
Thus Machiavelli--in contrast to Locke, Rousseau and Mill--sought to
incorporate into the constitution a regularized system of standby
emergency powers to be invoked with suitable checks and controls in
time of national danger. He attempted forthrightly to meet the problem
of combining a capacious reserve of power and speed and vigor in
its application in time of emergency, with effective constitutional
restraints.
CONTEMPORARY THEORISTS
Contemporary political theorists, addressing themselves to the problem
of response to emergency by constitutional democracies, have employed
the doctrine of constitutional dictatorship. Criticism of their schemes
for emergency governance is made difficult by the ambiguities latent
in the terminology they adopt. An effort is made below to distinguish
between those who mean dictatorship when they say dictatorship, and
those who say dictatorship when they mean to refer to any effort
by constitutional government to respond adequately to emergency
conditions. However idiosyncratic the individual definitions of
dictatorship, the theories of constitutional dictatorship explicitly or
implicitly posit a transition in time of emergency from the processes
of constitutionalism to those of an outright or slightly modified
authoritarian system.
Frederick M. Watkins, who is responsible for the classic study of the
Weimar experience with emergency powers,[28] appears to have based
his general discussion of emergency powers upon _a priori_ reasoning
rather than upon empirical research.[29] Provided it “serves to protect
established institutions from the danger of permanent injury in a
period of temporary emergency, and is followed by a prompt return to
the previous forms of political life,” Watkins can see “no reason why
absolutism should not be used as a means for the defense of liberal
institutions.”[30] He recognized the two key elements of the problem
of emergency governance, as well as all constitutional governance:
increasing administrative powers of the executive while at the same
time “imposing limitations upon that power.”[31] He rejects legislative
checks upon the exercise of executive emergency powers as an effective
method of imposing such limitations, for “it is clearly unrealistic to
rely on a government-controlled majority in the legislature to exercise
effective supervision over that same government in its use of emergency
powers.”[32] On the other hand, judicial review of executive emergency
action on its merits is regarded with admiration tempered only by
regret at the delay inherent in judicial proceedings.[33]
Public-domain text, read in full here on John Shaqi.
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