Emergency Powers Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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Emergency powers generally refers to the temporary suspension of the normal rules and proceedings in an organized political system and the provision of special discretionary authorities to a specific agent to respond to extraordinarily dangerous situations that threaten public safety. Such situations may include foreign invasion, internal rebellion, economic depression, or a severe natural disaster. Examples of emergency provisions include the curtailment of individual rights such as speech, press, and assembly; suspension of the writ of habeas corpus; imposition of curfews and restriction of movement; unrestrained search and seizure of private property; central government management of the economy; and use of military forces alongside or in place of civilian legal and public safety institutions. Central to the concept of emergency powers is that they are legally invoked, temporarily assigned, intended to achieve immediate decisive action in response to specific circumstances that threaten the survival of the political entity, and designed to restore the political order to status quo ante.

Invoking Emergency Powers

Autocratic governments do not require emergency powers since, as political scientist Clinton Rossiter notes, it is not necessary “to suspend rights that do not exist or augment powers that are already absolute.” Therefore, these powers are associated mostly with liberal democratic regimes that have a prominent deliberative lawmaking body and a commitment to the protection of individual rights and the rule of law. In times of extreme danger, these governments may need to concentrate power, consolidate decision-making authority, and curtail individual liberties to manage the crisis to ensure the survival of the political order. In other words, they may need to become more autocratic to survive. Since the normal legislative process can be too slow, inflexible, and cumbersome to respond adequately to a dangerous situation, the executive is often the empowered political entity who can make and enforce decisions swiftly to meet the demands of the crisis.

Ideally, once the crisis subsides, the emergency powers expire, the authority accumulated by the executive is relinquished, and the normal precrisis political order resumes operations. Since emergency powers concentrate authority in one or a few individuals during the crisis, attention must be given to erecting safeguards to prevent or complicate the corruption and abuse of power, specifically the continuance of emergency powers after the crisis is over. Should the extraordinary powers not be relinquished, precrisis constitutional order could be transformed into tyrannical and arbitrary rule, thus defeating the original purpose of having emergency powers: to preserve the precrisis constitutional regime. History abounds with examples of emergency powers’ leading to the usurpation of power, the institution of a state of permanent emergency, the creation of an emergency regime, and the indefinite suspension of the constitutional procedures and individual rights. Perhaps the most infamous abuse of emergency powers occurred in 1933 Germany, when Adolf Hitler, as chancellor, exploited the emergency provisions of article 48 of the Weimar Constitution to suspend that constitution indefinitely and usher in the National Socialist regime.

One of the most important safeguards is that those political actors empowered by the implementation of emergency powers are not the same authority to decide when such powers should be initiated or terminated. In most modern democracies, the legislative branch has the authority to declare and terminate the declaration of an emergency situation, while the executive is the agent who will be empowered. Another safeguard includes the establishment of a separate authority to determine whether the political agent wielding emergency powers abuses his or her authority and to hold him or her accountable after the crisis has been met. This likely would be the legislative or judicial branch of government, which would hold a trial after the crisis to make such determinations. The German political theorist Carl Schmitt challenged many liberal democratic assumptions regarding emergency powers by suggesting that emergencies are the normal state of affairs and that the locus of sovereign power in a government rests with the one who has the authority to decide when a crisis begins and ends and which powers need to be utilized. In doing so, he justified autocratic rule in modern government.

Historical Foundations Of Emergency Powers

The constitutional dictatorship of the ancient Roman republic is perhaps the most famous, and clear-cut, example of emergency powers. When the survival of the republic was threatened, the Roman senate would name a citizen the “dictator” and grant him extensive military powers for six months for the sole purpose of acting decisively to meet the demands of the crisis. In addition to initiating and terminating the dictatorship, the senate also checked the abuse of the extraordinary powers by maintaining control over the republic’s finances.

Modern Emergency Powers

Republican Rome’s constitutional dictatorship has influenced the conceptual development of emergency powers in modern democracies. Most modern democracies contain some form of emergency powers either explicitly or implicitly in their constitutions or have adopted legislation to enact such powers in times of crisis, such as the U.S. National Emergency Act of 1976. The institutions of the state of siege (état de siège) in civil-law countries and martial law in common-law countries are based on the British legal tradition. Although derived from different legal systems and constitutional frameworks, the emergency institutions of state of siege and martial law consist of many similar measures and principles including the curtailment of civil rights and the use of the military and military courts for civilian use.

These are the most prominent and extreme forms of emergency powers, however, as they can be more limited in scope and extent. For instance, local and territorial governments may employ some form of emergency powers in response to local crises including natural disasters that require the use of some military forces and the suspension of some individual liberties such as imposing quarantines, forcing evacuations, and implementing curfews.

The global threat posed by modern terrorist organizations and the legal and military measures that governments have attempted in response, including military tribunals to prosecute suspected terrorists and increased surveillance on domestic populations, have brought emergency powers in liberal democracies to the forefront of recent scholarly debates. However, this debate is at least as old as the Roman republic and illustrates the perennial tension between rule of law and the preservation of the political order in times of danger.

Bibliography:

Bonner, Robert J. “Emergency Government in Rome and Athens.” Classical Journal 18, no. 3 (1922): 144–152.
Das Gupta, Jyotirindra. “A Season of Caesars: Emergency Regimes and Development Politics in Asia.” Asian Survey 18, no. 4 (1978): 315–349.
Ferejohn, John, and Pasquale Pasquino. “The Law of the Exception: A Typology of Emergency Powers.” International Journal of Constitutional Law 2, no. 2 (2004): 210–239.
Gross, Oren, and Fionnuala Ní Aoláin. Law in Times of Crisis: Emergency Powers in Theory and Practice. New York: Cambridge University Press, 2006.
Lijphart, Arend. “Emergency Powers and Emergency Regimes.” Asian Survey 18, no. 4 (1978): 401–407.
Relyea, Harold C. “National Emergency Powers.” Congressional Research Service Report for Congress,Washington, D.C., 2006.
Rossiter, Clinton. Constitutional Dictatorship: Crisis Government in the Modern Democracies. New Brunswick, N.J.:Transaction, 2006.