The Inevitability of Emergency Powers

My latest Verdict column uses the occasion of last week's abortive declaration of martial law in South Korea as an opportunity to revisit an age-old question of constitutional design: Is it wise to include emergency powers in a constitution?

As I explain in the column, the U.S. Constitution is somewhat unusual in containing no general provision permitting the suspension of parts or all of it in times of emergency. Its only provision for emergencies is the vesting (by implication) of the power to suspend habeas corpus in Congress. Thus, President Lincoln's effort to suspend habeas on his own authority was rejected by Chief Justice Taney in Ex Parte Merryman. Other countries, including South Korea, split the difference by vesting the power to declare martial law in the president, subject to override by the legislature.

The upshot of my column is that even countries like the U.S. that do not vest the executive with any formal emergency powers are susceptible to the abuse of assumed emergency powers. The point is a very basic one: the Constitution is only words, what Madison called a "parchment barrier." If a president were to try to exercise emergency powers unlawfully, the Constitution would not leap from its display case at the National Archives to stop him. We would depend on courts, military officers, and others to say no.

But what if there really were a genuine national emergency that required the president not only to suspend habeas but to exercise other powers as well? Suppose a missile or meteor struck Congress while it was in session, killing all or nearly all of its members--so that it would lack a quorum to act; suppose further that chaos ensued more broadly throughout the country, so that to restore some semblance of law and order the president needed to take two actions that are pretty clearly unconstitutional: (1) suspend habeas on his own authority; and (2) give directives to state and local officials who do not wish to carry out those directives, which would violate the anti-commandeering doctrine of Printz v. United States. (Justice Stevens, speaking for himself and three other dissenters in Printz, made this exact point: the majority holding would preclude commandeering of state and local officials even in the event of a dire emergency; the majority did not respond, implying that the anti-commandeering rule is absolute and applicable even in times of emergency).

I suppose it's possible that in the circumstances I've just described, a president would refrain from suspending habeas or commandeering state and local officials on the ground that the Constitution fails to authorize such actions. But the logic of Lincoln's 1861 all-the-laws-but-one defense of his unilateral suspension of habeas corpus seems like it ought to prevail in my hypothetical example, whatever one thinks of it in its actual historical context. Even if the wiping out of Congress doesn't permanently terminate the constitutional regime we have, surely such a cataclysm puts it on hold--so that for some period we are in an extra-constitutional domain. During such circumstances, a president's failure to exercise emergency powers feels like a betrayal of the Constitution, as it would allow either anarchy or the assertion of power by even less legitimate actors, such as warlords.

Another way to understand the view I'm defending is as a corollary of the position Professor Buchanan and I defended in our first major debt ceiling article: when all of the president's options--including doing nothing--are unconstitutional, the president should opt for the least unconstitutional course of action. As applied to my hypothetical of a missile or meteor, the main options are: (1) violate Merryman and Printz by unilaterally suspending habeas and commandeering state and local officials; or (2) do only what little you can with the authorities you constitutionally command, even though you know they are insufficient to restore law and order, thus likely leading to the permanent end of constitutional government. The first course is unconstitutional on inspection, but the second one is more unconstitutional, as it would violate the president's obligation to "take care that the laws be faithfully executed" and end the Constitution itself. It would result, to paraphrase Lincoln, in all the laws but two going unexecuted, and the Government itself going to pieces.

Unsurprisingly, Professor Buchanan and I relied on Lincoln's logic, which strikes me still as impeccable--if the factual premises are correct. But there's the rub, of course. Even assuming good faith--as we can assume in Lincoln's case but perhaps not in the case of all presidents (ahem!)--the head of the executive branch of government will be prone to seeing emergencies, and thus seeing the need to act unconstitutionally to save the republic (dare I say, to make it great again), even when most observers would perceive only ordinary policy choices.

Accordingly, I am prepared to defend the Constitution's failure to vest in the president any emergency powers on much the same ground that I would (and do) defend the absolute legal prohibition of torture. I'm willing to concede, at least arguendo, that in some versions of the ticking bomb case, torture is morally justified. However, I nonetheless approve of the absolute legal prohibition on torture for two complementary reasons. First, if there really is a ticking bomb, officials are likely to do what they think is necessary, regardless of what the law says--so an absolute prohibition of torture is, in practice, more like a very strong presumption against torture. Second, expressly allowing torture in any circumstances would likely lead to too much torture. As I put the point in 2011, "categorical prohibitions on torture assume (quite reasonably) that an authorization to conduct torture to find and defuse ticking bombs will be abused by authorities who start hearing bombs ticking everywhere."

In many respects, the U.S. Constitution is an antiquated and flawed document as compared with constitutions of more recent vintage. In its failure to grant the president emergency powers, however, the U.S. Constitution gets things right.