Powers of the President during crises — John Shaqi
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
Clinton L. Rossiter, after surveying the recent history of the
employment of emergency powers in Great Britain, France, Weimar
Germany, and the United States, reverts to a description of a scheme
of “constitutional dictatorship” as solution to the vexing problems
presented by emergency.[41] Like Watkins and Friedrich, he is concerned
to state, _a priori_, the conditions of success of the “constitutional
dictatorship.”
“1. No general regime or particular institution of constitutional
dictatorship should be initiated unless it is necessary or even
indispensable to the preservation of the state and its constitutional
order....
“2. ... the decision to institute a constitutional dictatorship should
never be in the hands of the man or men who will constitute the
dictator....”[42]
“3. No government should initiate a constitutional dictatorship without
making specific provision for its termination....
“4. ... all uses of emergency powers and all readjustments in the
organization of the government should be effected in pursuit of
constitutional or legal requirements....
“5. ... no dictatorial institution should be adopted, no right invaded,
no regular procedure altered any more than is absolutely necessary for
the conquest of the particular crisis....
“6. The measures adopted in the prosecution of a constitutional
dictatorship should never be permanent in character or effect....
“7. The dictatorship should be carried on by persons representative of
every part of the citizenry interested in the defense of the existing
constitutional order....
“8. Ultimate responsibility should be maintained for every action taken
under a constitutional dictatorship....
“9. The decision to terminate a constitutional dictatorship, like the
decision to institute one, should never be in the hands of the man or
men who constitute the dictator....
“10. No constitutional dictatorship should extend beyond the
termination of the crisis for which it was instituted....
“11. ... the termination of the crisis must be followed by as
complete a return as possible to the political and governmental
conditions existing prior to the initiation of the constitutional
dictatorship....”[43]
Rossiter accords to the legislature (in the case of the United States,
at any rate) a far greater role in the oversight of executive exercise
of emergency powers than does Watkins. He would secure to Congress
final responsibility for declaring the existence or termination of
an emergency,[44] and he places great faith in the effectiveness of
congressional investigating committees.[45] In this work he offers no
clear statement of the proposed relationship of the judiciary to his
scheme of “constitutional dictatorship.” In a subsequent study, he
concluded on the basis of a critical review of the Supreme Court that
it was impotent “as overseer and interpreter of the war powers.”[46]
CONTEMPORARY THEORIES IN THE LIGHT OF RECENT EXPERIENCE.
Public-domain text, read in full here on John Shaqi.
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