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Emergency Powers: A Constitutional Journey through US History

The President of the United States has held an ace up his sleeve for most of the country’s constitutional history. This ace is in the form of the emergency powers inherent in his office. They have been used to deal with most issues in the US and are the source for most of the US’s national and international controversies and come with an interesting and familiar story when studied in a legal context.

The Theories Dealing With Emergency Powers

Before we get into history, it would be convenient to first understand what the law says about emergency powers, to begin with. Emergency powers are needed when the constitutional powers do not effectively equip the President to deal with crisis situations. In such situations, establishing a state of emergency allows him/her to exceed the powers of the office as laid out in the Constitution. Of course, it still does not allow him/her to directly oppose the Constitution. That would still come with its own set of consequences. Now, it is obvious that the law does not take kindly to overstepping the limitations set by the Constitution, no matter who it is that is doing so, but emergency powers have their uses, and they cannot be overstated. To deal with the issue, three theories or models of thought exist about emergency powers.

Firstly, the absolutist model says that no powers outside the Constitution shall be allowed. This model believes that the Constitution is an ever-evolving document and provides methods to deal with issues of any nature. Overstepping these rules will create more problems than it will solve. Next, the relativist model states that the Constitution should allow emergency powers within set boundaries. The President should be able to take any measure necessary to protect the nation’s interests; this power should be inherent in the Constitution. Finally, the liberal model terms any use of emergency powers as unconstitutional. However, using these powers would be allowed if justifiable as a necessary last resort in an extraordinary situation. Let us look into which of these theories the US has been following.

The Early Days of the Constitution

When the US Constitution was still young, certain crises arose that the Presidents could not resolve through their constitutional powers. President George Washington used these powers during the Whiskey Rebellion. Thomas Jefferson later used them to set trade embargos during the Napoleonic wars. During this time, emergency powers were not present within the Constitution, so the Supreme Court deemed these acts unconstitutional. The Presidents, especially Jefferson, argued that exercising these powers became necessary when the constitutional powers fell short. To protect national interests and security, these steps had to be taken. But the law does not consider necessity as a valid argument; it only looks to the letter and spirit of the law. Thus these decisions did not change.

However, Congress holds the power to relieve the President of these liabilities. Thus, after the court gives its decision, Congress would consider whether using these emergency powers was warranted given the situation. The President’s reasoning in this regard is considered, and if the necessity of these actions is recognized, the use of those powers is approved. This showed the US following the liberal model for its use of emergency powers, and it worked because, even as Jefferson pointed out, these situations were very rare but unique, and such desperate times required desperate measures because the security of the United States is perhaps the only thing that can reasonably overshadow the rule of law. This also worked because, during this time, the US chose to keep mostly to itself and not indulge in international disputes owing to the volatility of its own huge and polarized population.

The Shift in the 20th Century

Things began to change, however, in the first half of the 1900s with the two World Wars. The US had actively participated in both wars and shown the world its power. This saw the beginning of the US’s megalomaniacal control over the occurrences of the whole world. The policy of “US first”, while still the priority, the policy itself saw a change. The threats to the US’s security began to come not just from within but from the whole world, and thus any dispute that took place would be a threat to the US itself. This saw the US’s subsequent participation in the Korean War, the Cold War, the Vietnam War, Iraq, Iran, Nicaragua, Afghanistan, and Yemen, among others.

With this Shift, the “very rare occurrences” that warranted the use of emergency powers became the new normal for the US. If there was always a crisis to justify using emergency powers, there would always be a state of emergency. And thus, the US switched to the relativist model of emergencies and the use of emergency powers was deemed constitutional. The Supreme Court stopped questioning the use of these powers as long as they did not actively oppose any constitutional provisions, and even if in some cases they did, a few legal loopholes were all it took to avoid deeming their unconstitutional acts.

We will explore in a later article what this situation has escalated to and where we currently stand. This also warrants a discussion on what comparisons we can draw between the US’s situation and our own and what some legal experts have to say about this dilemma.

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