Note, The Exercise of Emergency Powers , 85 Harvard Law Review 1284-1326 (April, 1972 (174 Footnotes)
I. General Guidelines. -- The use of emergency measures in any particular situation must satisfy three sets of
guidelines. First, there must in fact be an emergency situation. Moreover, in order to prevent post hoc
justifications of unconstitutional actions based on the assertion that they were needed to cope with an emergency, a
declaration of emergency should precede any use of emergency measures to restore order. Second, the particular
measures must bear a reasonable relation to meeting the specific dangers created by the emergency. The measures
must not be used for purposes other than protecting the government and restoring order. Third, there must be no
alternative to the measures chosen that would be as effective in dealing with the emergency but less restrictive of
individual rights. Only if all these conditions are met can government action to quench the fires of an emergency
avoid the erosion of constitutional doctrine protecting individual liberties in ordinary times.
Although these guidelines do aim to protect against unnecessary infringements upon constitutional rights, they
also automatically elevate the least restrictive measure adequate to the government's interest in restoring order
above any competing individual liberties. Once it has been established that an emergency exists, the general
necessity of restoring order is taken to prevail over assertions of individual rights, justifying sweeping measures,
like curfews, whose application to each individual does not have to be supported by a separate showing of
necessity. The suggested guidelines represent, therefore, a compromise on the degree of protection afforded
individual rights in an emergency. The government is provided with the authority to use emergency measures
necessary to restore order, while individuals are protected against unnecessary interferences with their
constitutional rights. Since the key to maintaining this limit on the government's exercise of its emergency powers
is a system of institutional restraints on executive discretion, it is necessary now to consider the role of the
legislatures and the courts in making or reviewing the decisions to declare an emergency and to employ specific
emergency measures.
2. Legislative Participation in the Exercise of Emergency Powers. -- The role of the legislature in exercising
emergency powers differs sharply between the federal and state governments. For two related reasons,
congressional participation is considerable both in declaring emergencies and in fashioning measures to restore
order. First, certain emergency powers, such as the declaration of war and the suspension of the writ of habeas
corpus, are exclusively within the domain of Congress. Secondly, the general power to take actions to protect the
Government from external and domestic attacks upon it is divided between the President and Congress, leaving
uncertain the extent of the power of the President acting alone. The powers of the President derive from his
constitutional authority as Commander in Chief, and from statutory provisions authorizing him to use federal
troops to deal with domestic disorders and to make certain administrative changes in governmental operations to
deal with civil defense emergencies. Those of Congress derive in part from specific constitutional grants, which
include in addition to the declaration of war and the suspension of habeas, the powers to establish and maintain an
army and a navy and to provide for the calling forth of the militia. They also derive from the general constitutional
responsibility of the federal government to guarantee a republican form of government to the states, to protect them
against invasion, and, upon request, to protect them against domestic violence.
By obtaining congressional approval for the use of emergency powers, the President can exercise them to their
fullest extent and reduce the chances that the measures he takes will be struck down by the courts. Indeed, the
only instances of judicial condemnation of the Presidential use of emergency measures on constitutional grounds
have been where the President acted alone. Thus, if only to gain political and judicial insurance, the President has
often sought authorization for the use of emergency measures.
Such congressional authorization has taken two forms. First, Congress has given prior approval for the President
to act if certain types of emergency situations arise. Such emergencies have been defined either in terms of the
events which would create them, such as invasion or insurrection, or of the effect the disturbance would have in
obstructing the functioning of the Government or the enforcement of the laws. Both types of definition are
necessarily general in order to allow the executive flexibility to respond to unforeseen dangers, and therefore the
executive must exercise considerable judgment as to the appropriate occasions for the use of its emergency powers.
FN29] However, in granting this form of authorization, Congress has rarely reserved to itself the power to review
the President's declaration of emergency, and in the absence of such a review provision, the President has
complete discretion in deciding whether an emergency situation has arisen. Second, Congress has reacted to
existing emergencies by authorizing the President to take specific measures to deal with that particular threat to the
national security. Where the President has acted pursuant to such a congressional authorization, his use of
emergency measures that went beyond it has been struck down by the courts. However, even this form of
authorization still has left the detailed application of the measures to the President.
On the state level, the role of the legislature is much less extensive, and the executive has almost total discretion.
The definition of an emergency situation in most state constitutions and statutes includes less serious disturbances
such as "riots" and "mob violence," and there is generally no provision for legislative review of an executive
declaration of emergency. Moreover, there is less incentive for state executives to seek legislative approval for the
use of specific emergency measures, since they are usually free of state constitutional and statutory restraints on
their response to an emergency, and their use of emergency powers is not limited by federal constitutional doctrine
concerning the separation of powers.
The most striking aspect of the existing statutory and constitutional framework for legislative control of executive
emergency powers is the almost total absence of legislative checks on executive discretion at or near the time when
decisions about governmental action must be made. Yet this seems precisely the point at which legislative
participation might provide significant additional protection against the abuse of emergency powers. To increase
legislative participation in the decision to apply emergency measures, prior authorizations of executive action in an
emergency might require legislative review of the declaration of emergency, thus permitting the legislature to
invalidate or terminate that declaration if it found that the circumstances did not amount to an emergency or that
the emergency no longer existed. This procedure would help to safeguard against government actions depriving
individuals of their constitutional rights in normal times. It would ensure that an independent political body, with
the necessary fact-finding capacity to challenge the factual assertions of the executive and representing a wider
range of interests, would consider whether there existed a threat of sufficient intensity to the functioning of the
government to require the use of emergency measures.
Even under such a scheme, there would remain the problem of preventing the use of emergency measures that
exceeded what was necessary to restore order. One possible safeguard would be for the legislature to refrain from
granting prior approval to any use of emergency measures by the executive. In the case of an emergency, then, the
legislature would authorize only those measures that seemed necessary to cope with the particular dangers present.
Yet as a practical matter, it seems unwise to prohibit the executive from exercising all emergency powers until the
legislature has had the opportunity to deliberate. Thus, the best approach might be for the legislature to authorize
in advance the temporary use of several emergency measures best suited to dealing with the early stages of a
disturbance and to deny authorization for more drastic measures. Such authorization and denial could be modified
after the legislature had had time to convene if necessary and to consider which measures would be most
appropriate for restoring order in a particular emergency.
3. Judicial Review of the Use of Emergency Measures. -- Increased legislative participation in the exercise of
emergency powers would provide an important safeguard against the abuse of those powers. However, the
procedures proposed above would not guarantee that emergency measures would not be used in ways that
unnecessarily deprived individuals of their constitutional rights. A legislature as well as an executive is subject to
popular pressures to overreact to a disturbance. Indeed, since the adverse political consequences of a response that
failed to curb the disorder promptly and effectively would probably be greater than those resulting from an
excessive use of emergency measures, both political branches of the government seem likely to err on the side of
overzealousness. To meet this problem, the further safeguard of judicial review seems necessary.
(a) The Traditional Standards of Review. -- The Supreme Court's standard for reviewing the use of emergency
measures has varied widely. In Ex parte Milligan, which involved emergency measures taken by President Lincoln
during the Civil War, the Court verged on taking the extreme view that government action in emergencies is
subject to the same constitutional limitations as are actions taken in normal times. In Milligan the Court appeared
to construe the constitutional grant of power (to Congress) to suspend the privilege of the writ of habeas corpus as
indicating that the Constitution did not permit the suspension of any other protected rights, even in the event of
invasion or rebellion.
But by unexplained contrast to its Milligan approach, the Court appeared to come down at the other end of the
spectrum in Moyer v. Peabody, a 1909 case reviewing actions taken by a state governor pursuant to a proclamation
of martial law during a violent labor dispute. The Court seemed to view the choice of what particular measures to
take during an emergency as an exercise of political power with which the courts should not interfere, as long, at
least, as the choice was made in good faith. Moreover, the Court held "that the Governor's declaration that a state
of insurrection existed is conclusive of the fact." Thus, Moyer came to stand for the proposition that the executive
has nearly complete discretion in its exercise of emergency powers, both with respect to declaring the emergency
and to choosing the means of meeting it.
This stance, however, granted an excessive degree of latitude to gubernatorial judgment and was ultimately
replaced in the case of Sterling v. Constantin by a standard of review that scrutinized the government response to
find a "direct relation" between the measure taken and the goal of restoring order. In Sterling the Governor of
Texas had declared martial law in order to have the militia impose a production limit which a federal court had
enjoined the State's regulatory commission from imposing. The emergency claim was based upon an alleged but
unsubstantiated fear that the local populace would rise up in order to stop the plunder of the vicinity's oil resources.
In the face of this claim the Court refused to follow Moyer, first distinguishing between the conclusiveness of the
executive's declaration of emergency and its choice of measures, and then subjecting the latter to a direct relation
test. Similarly, in Korematsu v. United States and Hirabayashi v. United States, the most recent cases in which
the Supreme Court decided the constitutionality of emergency measures taken bythe federal government during
wartime, the Court undertook an independent, albeit restrained, inquiry as to whether there was a reasonable basis
in fact for the conclusion that the measures were necessary to meet the particular dangers posed by the emergency
situation. However, in Korematsu and Hirabayashi the Court concluded that the Government's fear of espionage
and sabotage by persons of Japanese ancestry was reasonable and therefore upheld respectively a curfew directed
against them and an Executive order excluding them from the West Coast.
Although the approach of Sterling, Korematsu, and Hirabayashi provides greater protection for individual
liberties in an emergency than that of Moyer, the standard of these cases -- requiring no more than a reasonable or
direct relation between the measures taken and the goal of restoring order -- is inadequate. To prevent the abuse of
emergency powers, courts must review both whether an emergency existed, and, more important, whether the
measures taken were necessary to restore order. The best standard to adopt would be a strict standard of necessity,
which would require that there not be available to the government alternative means of coping with the emergency
that were as effective as the measures employed but less restrictive of individual liberties. On occasion, courts have
considered this factor in reviewing an emergency measure, but they have never articulated a
less-restrictive-alternative test as a vital aspect of the judicial review of government uses of emergency powers. In
part the reason for this may be that the use of less-restrictive-alternative analysis as a standard of judicial review
raises certain problems for the courts that must be considered more fully.
(b) The Less-Restrictive-Alternative Test. -- Less-restrictive- alternative analysis is in a sense inherent in any
judicial review of government actions on the basis of their reasonableness, since the reasonableness of a measure
necessarily depends on the alternatives available. However, the proposed application of less-restrictive-alternative
analysis is broader, for it implies that whenever a less restrictive alternative of equal effectiveness can be shown,
the measure taken will be invalidated. This use of the less-restrictive-alternative test is less common in
constitutional litigation, although it can sometimes be found in cases involving the first amendment and the
commerce clause, and some commentators have urged that it be applied more frequently and more widely.
The principal objection to the use of the less-restrictive- alternative test is that the courts should not substitute
their choice between reasonable alternatives for that of the legislature, especially since such a choice would
involve a difficult evaluation of relative costs, effectiveness, and restrictiveness of alternative measures -- a task for
which the courts are not well suited. While this argument carries considerable force in the context of normal
times, it is not so powerful in an emergency situation, for then special circumstances make the use of the less-
restrictive-alternative test appropriate.
First, if a less-restrictive-alternative approach presents excessive difficulty during normal times, courts can fall
back on a balancing approach which takes into account the interest of the individual in the protection of his
liberties in deciding the constitutionality of a measure. However, this approach is not employed in emergency
situations, for courts have generally held that infringements upon individual liberties are outweighed by the
necessity that the government protect itself. Thus, if all that must be shown before an emergency measure qualifies
to compete with constitutional rights is that it bears a direct or reasonable relation to the goal of restoring order,
very little protection is afforded individual liberties.
Second, in reviewing emergency measures, courts are usually not faced with an informed and deliberated
legislative choice, but rather an executive action -- and, if the proposed procedures are followed, a legislative
review -- that may have been made quickly, under severe pressures, or on the basis of incomplete information. In
such a situation less deference should be given to the decision of the political branches, and closer judicial scrutiny
of the alternatives open to the government is justified in order to prevent unnecessary infringements upon
individual rights. To be sure, the executive possesses a greater familiarity with the problem of maintaining order,
and there is a danger in placing excessive restraints on the use of emergency powers. But the executive's expertise
can be taken into account if the courts do not strike down an emergency measure where there is significant doubt
as to whether an alternative measure would be as effective. The burden of persuasion, therefore, should be upon the
individual challenging the actions of the executive.
Finally, while a court will inevitably encounter some difficulties in evaluating the cost, effectiveness, and
restrictiveness of various emergency measures, the application of a less-restrictive-alternative test is not beyond
judicial competence. To begin with, the relative costs of implementing alternative measures in terms of such
resources as money and manpower should rarely be a factor in deciding the constitutionality of an emergency
measure. Constitutional restraints upon the powers of the government often increase the costs of furthering valid
governmental interests. For example, the warrant requirement for searches and seizures, or the arraignment
procedure for checking probable cause and setting bail, necessitates greater expenditure of police resources than
would be required in the absence of such safeguards. However, in normal times the courts would reject out of hand
the argument that the cost of providing magistrates justifies holding arrestees for long periods without bail. These
higher costs are accepted because of the value we place on the protection of individual liberties provided by such
procedures. During an emergency, a relaxation of constitutional restraints is justified by the government's need to
protect itself against severe threats to its existence or functioning. But when an alternative measure can effectively
accomplish this purpose and still infringe individual rights less, there is no reason why its higher cost should be
given more weight during an emergency than in normal times, at least as long as there is no question of exhausting
available resources for dealing with the emergency.
The principal factors, therefore, in applying the less-restrictive- alternative test to the review of emergency
measures are the relative effectiveness and restrictiveness of alternative means of restoring order. In determining
effectiveness, courts would not be called on in reviewing emergency measures to make subtle comparative
evaluations. Since for reasons stated above the burden of pursuasion should be on the individual attacking the
government's actions, the courts would have to decide only whether it was clear by a preponderance of the evidence
that an alternative measure would be substantially as effective in restoring order.
The evaluation of the relative restrictiveness of an alternative measure would also pose few problems. The easiest
case would be where the alternative was either a measure whose constitutionality had been sustained in
nonemergency situations or one that was simply a more restricted application of the measure taken by the
government. For example, a warranted search of a single dwelling or a warranted area search would both clearly be
less restrictive than a warrantless area search. Similarly, where the alternative was another emergency measure
which infringed upon the same right as the government's action, a comparison of restrictiveness would be rather
easy, since it would be only the extent of infringement that would differ. Thus, an area search of homes for bombs
would intrude more on the right of privacy than a search of the bags and packages of all persons entering public
buildings. In cases where different rights were affected, a decision would be considerably more difficult, since
courts would then have to make some judgment as to the relative importance of the rights involved. They might be
called on to compare, for example, the interference with right to assembly involved in a curfew with the denial of
due process and the right to a jury trial caused by military trials of civilians. Nevertheless, this problem should not
be overstated. Courts confront the same dilemma whenever two constitutional rights are in conflict and manage to
resolve it with reference to the particular situation before them. Moreover, in the context of an emergency, this
problem should not arise often, for alternative measures that affect entirely different rights are not likely to be
directed toward dealing with the same type of emergency situation. Curfews are designed to prevent further mass
disorder on the streets, while the use of military tribunals serves as an alternate means of administering justice
when the civil courts are unable to function because of an invasion or insurrection in the area.
(c) Remedies for the Abuse of Emergency Measures. -- As a standard of review the less-restrictive-alternative test
promises to provide a significant check on government use of emergency measures. However, as with legislative
checks, there would be practical obstacles to the effectiveness of judicial review in preventing infringements of
individual rights that were not justified by the necessity of restoring order. First, the response of the executive to a
situation of danger to the government would be based on information available to it through police and military
sources. It would be unlikely, at least in the early stages of an emergency, that courts would have access to other
sources of information. Furthermore, while not accountable to the electorate, courts would not be immune from the
same popular pressures that would influence the decisions of the executive and the legislature during an
emergency. Thus, judicial perception of the disturbance can be expected to follow that of the political branches of
the government. Second, by the time emergency measures were reviewed by the courts, they already would have
infringed individual rights substantially. The prevention of further harm would depend on the availability of
injunctive and habeas relief. During an emergency, however, courts probably would be more hesitant than in
normal times to grant such relief for fear of placing excessive restraints on the ability of the government to restore
order. Moreover, if the privilege of the writ of habeas corpus had been suspended, the courts would be powerless to
order the release of illegally detained persons.
Since individuals might therefore be unable to prevent or stop an unjustified infringement upon their rights by the
government during the emergency, courts might well reexamine their decisions after the emergency and grant
appropriate relief. Such reexamination would serve both to guide future decisions of the government as to the use
of emergency measures and to remedy past abuses. In addition to the usual remedies of habeas, acquittal or reversal
of conviction, and suppression of evidence, damage actions might be allowed to compensate for the injury that
innocent people had suffered. Since at present the doctrines of sovereign and official immunity impose serious
barriers to this form of relief, legislative action narrowing the scope of governmental immunity would be required
to provide a damage remedy for persons injured by the government's exercise of its emergency powers.
Read the following links:
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Checks on the Use of Emergency Powers
Emergency Measures for Restoring Order
