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
Emergency, as a generic term applicable to individual and group
situations as well as to the state, connotes the existence of
conditions suddenly intensifying the degree of existing danger to life
or well-being beyond that which is accepted as normal. (A standard
dictionary definition mentions the element of surprise, which may be
present but is by no means necessarily integral to the existence of an
emergency. An intense threat to life or well-being is not necessarily
lessened by anticipation.) An emergency requires extraordinary and
prompt corrective action. A typical British recital of the proper
objectives of emergency action inferrentially includes “... securing
the public safety, the defense of the realm, the maintenance of public
order and the efficient prosecution of any war in which His Majesty
may be engaged, and ... maintaining supplies and services essential
to the life of the community.”[55] Public disorder, war and threat of
invasion, interruption of the production or flow of essential supplies
and services--any of these may intensify danger to life or well-being
beyond acceptable limits. A similarly broad definition is contained
in the American Labor-Management Relations Act of 1947, the national
emergency section of which permits the President to curb strike action
which “if permitted to occur or to continue, [would] imperil the
national health or safety.”[56]
Implicit in these definitions are the elements of intensity, variety,
and perception. Presumably when the point of normal tolerance of danger
has been passed, it remains possible to measure the intensity of the
danger according to some scale. Obviously there are varieties of
emergency. A war emergency differs in some respects from an emergency
caused by natural catastrophe or industrial unrest. Emergencies vary in
their source or cause, and in their impact. Finally, before corrective
action can be taken, someone in a position of authority must perceive
the existence of the emergency.
It would be idle to conduct an analysis of the problem of emergency
in the constitutional state without first determining the range of
situations which have been recognized by democratic legislatures and
executives to constitute emergencies--_i.e._, to warrant exceptionally
quick, vigorous, and possibly novel action. When the legislature
enacts a standby statute, instead of itself proclaiming an emergency,
to whom does it entrust the power to determine the existence of an
emergency, and within what limits? What are the powers which democratic
legislatures grant the executive branch, enabling it to so order
individual and group behavior as, in the first instance, to avoid
intensification of the threat to the life or well-being of community
and state, and ultimately restore conditions to normal? Finally, what
if any measures are prescribed for insuring responsible administration
of such powers?
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