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
Watkins places his real faith in a scheme of “constitutional
dictatorship.” These are the conditions of success of such a
dictatorship: “The period of dictatorship must be relatively short....
Dictatorship should always be strictly legitimate in character....
Final authority to determine the need for dictatorship in any given
case must never rest with the dictator himself....”[34] The objective
of such an emergency dictatorship should be “strict political
conservatism.”
“Radical social and economic measures may, of course, be necessary as
a means of preventing political change.... Boldly inventive as it may
be in other directions, however, a truly constitutional dictatorship
must always aim at the maintenance of an existing _status quo_ in the
field of constitutional law. Deviations from the established norms of
political action may be necessary for the time being. The function of
a truly constitutional dictatorship is to provide such deviations and
at the same time to make sure that they do not go any further than is
actually necessary under the circumstances.”[35]
Carl J. Friedrich casts his analysis in terms similar to those of
Watkins.[36] It is a problem of concentrating power--in a government
where power has consciously been divided--“to cope with ...
situations of unprecedented magnitude and gravity.[37] There must be
a broad grant of powers, subject to equally strong limitations as
to who shall exercise such powers, when, for how long, and to what
end.”[38] Professor Friedrich, too, offers criteria for judging the
adequacy of any scheme of emergency powers. The emergency executive
(“dictator”) must be appointed by constitutional means--_i.e._, he
must be legitimate; he should not himself enjoy power to determine
the existence of an emergency (and here, strangely enough, he finds
the United States and Great Britain conforming to the criterion);
emergency powers should be exercised under a strict time limitation;
and last, the objective of emergency action must be the defense of the
constitutional order.[39]
Recognizing that “there are no ultimate institutional safeguards
available for insuring that emergency powers be used for the purpose of
preserving the constitution” excepting “the people’s own determination
to see them so used,” Friedrich nonetheless sees some indefinite but
influential role which the courts, even though “helpless in the face of
a real emergency,” may play to restrict the use of emergency powers to
legitimate goals. They may “act as a sort of keeper of the President’s
and the people’s conscience.”[40]
Public-domain text, read in full here on John Shaqi.
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