Emergency Powers of the Executive: The President's Authority When All Hell Breaks Loose
Friedman, Joshua L., Journal of Law and Health
I. INTRODUCTION I. THE AXIS OVERSIGHT A. Executive Commander in Chief Powers B. Judicial Oversight of Executive Powers C. Legislative Oversight of Executive Powers III. THE ENUMERATED EMERGENCY POWERS OF THE EXECUTIVE BRANCH A. Emergency Powers B. Posse Comitatus C. Martial Law D. Immediate Response IV. IMPLICATIONS OF EXPANDED EXECUTIVE POWERS ON PUBLIC HEALTH EMERGENCIES A. Emergence of Related Cases B. Public Health Legislation C. Current Application to Emergencies V. CONCLUSION--THE PRINCIPLE OF NECESSITY AS A GLOSS ON EXECUTIVE POWERS
History bears out the genius of the Founding Fathers, who created a Government subject to law but not left subject to inertia when vigor and initiative are required
--Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 700 (1952).
The debate over the extent of Presidential authority has been argued since the very formation of our great nation. On September 17, 1787, in Philadelphia, Pennsylvania, thirty-nine state delegates convened at the Constitutional Convention and signed the Constitution of the United States into law. (1) At that time, the founding fathers intended to create an effective central government with a wide range of enforceable powers. (2) The President of the United States was intended to be the chief protector and the representative of the populace. (3)
The constitutional executive powers held by the President are broadly defined and vary in application. Chief Justice Marshall once wrote that, while the Constitution's "means are adequate to its ends," it is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs" (4) Therefore, this Article addresses, chiefly, the extent of the President's Executive powers to respond to threats to the security of the United States." (5)
According to the Court in In Re Neagle, 135 U.S. 1 (1890), "[the President] is enabled to fulfill the duty of his great department, expressed in the phrase that 'he shall take care that the laws be faithfully executed.'" (6) Specifically, the Framers intended the President's constitutional authority to be "a continuation of the English and colonial tradition in war powers." (7) In other words, the founders intended that, aside from Congress, the President should have the primary responsibility along with the necessary and requisite powers to protect the national security. (8) The President is not required to "seek legislative permission before engaging the military," (9) nor does this create a limitation whereas the executive would "have no power to commence war, or conclude peace, or enter into a final treaty without legislative approval." (10)
The President must also have the latitude to act with "decision, activity, secrecy, and dispatch." (11) This completely autonomous executive decision is sometimes tempered by the constitutional principle of checks and balances, such as the congressional and judicial oversight on executive authority, whether via legislation, inherent powers, or vis-a-vis Presidential deference. Finally, this Article endeavors to answer the profound question that continually faces this nation, in both past and present crises: in an emergency scenario, whether it be a terrorist attack, health crisis, or a natural environmental disaster, how broad, or rather, how substantive are the President's enumerated emergency powers?
Hamilton said it best: "the circumstances which may affect the public safety are [not] reducible within certain determinate limits ... there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficacy." (12) These varied occasions, such as martial law, posse commitatus, or immediate response, as envisioned by the Framers, were considered constitutional regardless of any limitations they placed on civil rights or liberties. …