Excerpted from: Note, The Exercise of Emergency Powers , 85 Harvard Law Review 1284-1326 (April, 1972 (174 Footnotes)
Previous sections of this Note have treated the national security interest in reducing the possibility of future
actions directed against the government. For example, one purpose of loyalty programs is to minimize the danger
of future sabotage against government installations by disloyal employees. Similarly, electronic surveillance of
potentially dangerous groups aims to obtain advance notice of the groups' plans in order to allow the government to
forestall actions harmful to the national security. This section turns to government measures that may be employed
in situations where preventive action has proven insufficient to curb a threat to the national security, and the
paramount question has become how to control an actual disturbance.
Not all large-scale disturbances, however, can reasonably be said to present a substantial danger to national
security. Disturbances vary as to duration, level of violence, degree of organization, and goals of the participants.
They also vary with respect to their territorial scope and the governmental unit threatened. This section is
concerned with those disorders of sufficient magnitude and intensity to assume national importance as they
threaten the functioning of government. Such disturbances will be labelled "emergencies" and taken primarily to
include open rebellion, like the secession of the South and the formation of the Confederacy, or the persistent and
highly organized use of political violence, asin Northern Ireland today. Analysis will also touch on problems posed
by violent, relatively short-lived and unfocused civil disorders, like the race riots of the 1960's, and by mass,
nonviolent civil disobedience directed against the government, such as the anti-Vietnam war May Day
demonstration held in Washington last year. This section will discuss the response to emergencies and potential
emergencies by local and state governments, as well as the response of the federal government to national
emergencies; quite apart from the necessity of controlling any localized effort which, like the May Day
demonstrations, is intended to bring the federal bureaucracy to a standstill, the effective control of localized
disorder and violence may be necessary to prevent its becoming more widespread and endangering national
security.
The central question of this section is whether and to what extent the powers of the government may expand in
response to the danger that emergencies pose. When the everyday routine of society is intruded upon by an
extraordinary disturbance such as mass terrorism or open rebellion, it may appear that the government must
employ measures which infringe upon individual rights that would be constitutionally protected in normal times.
Such "emergency" measures might include curfews, bans on demonstrations, area searches, preventive detentions,
military trials of civilians, and suspension of the writ of habeas corpus. The justification for such government
actions is that in crises such as domestic insurrection the danger to the security of the nation and its institutions is
so great that the government must take measures that temporarily deprive citizens of certain rights in order to
ensure the survival of the political structure that protects those and other rights during ordinary times.
There is, however, a considerable danger that these emergency powers might be abused. In the absence of any real
threat to its functioning, the government might declare an emergency and take actions whose intent is to bypass the
lawful means of accomplishing a political end, as, for example, when the Governor of Texas declared martial law
to circumvent a 1932 federal court injunction against the imposition of an oil production limit by the State.
Moreover, when confronted with an emergency situation, the government may overreact and employ measures that
go beyond what is required to restore and maintain order, thereby unnecessarily infringing upon individual rights,
as, for example, when the federal government excluded all persons of Japanese ancestry from the West Coast
during World War II.
In practice, the decisions to declare an emergency and to take emergency measures to restore order generally rest
with the executive, since it is the branch whose structure and function are most directly related to the preservation
of order and the enforcement of the laws. The general tendency of the executive branch to overrate threats to the
national security suggests that these decisions should be restricted by specific rules. But since it is only with
reference to a particular situation that the necessity of various measures for restoring order can be evaluated, it
seems impossible to provide definitive rules narrowly circumscribing executive decisions as to the use of any
particular measure. There are, however, other means of exercising some control over executive discretion in order
to prevent abuse of emergency powers. Central to establishing such control is the elaboration of general guidelines
that should be followed by the executive in acting to meet a situation which seems to demand extraordinary
measures. Just as important -- in order to ensure adherence to these guidelines -- is the effective operation of
institutional checks on the executive's exercise of emergency powers. In particular, it seems necessary for the
legislature to participate extensively in the decisions to declare an emergency and to use extraordinary measures,
and for the courts to undertake an active review of them.
The next subsection of this Note will propose guidelines that should inform the use of emergency measures. It will
also consider what the role of the legislative and judicial branches has been and should be in limiting the use of
emergency measures and in minimizing interferences with individual rights. A final subsection will examine
specific emergency measures in the light of this framework in order to make a tentative evaluation of the
appropriateness of each in dealing with specific types of disturbances.
Read the following Links:
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Checks on the Use of Emergency Powers
Emergency Measures for Restoring Order
