Is a “State of Emergency” Constitutional? Four Facts

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It’s time for a little rewind, especially in light of a few cities and a counties that have chosen to either shut down again or mandate masks again. So, during the thick of the coronavirus situation late year, most of the U.S. state governors issued states of emergency, as did the White House. We need a quick review of “states of emergency” from the perspective of the Constitution.

So, here’s the thing to remember moving forward. Executives love a good crisis. According to the Constitution, be it state or federal, the executive’s job is very minimal. Executives exist to execute existing law. So, elections for an executive really shouldn’t be all that important. Executive power is limited by how many laws the legislature writes. Without laws, what is there to execute? Executives are merely the enforcement agent of the most important branch: the legislative branch. Executives can’t make law, they can’t tell people what to do, and they can’t fix or harm the economy. Really, if you read the Constitution, they’re equipped to do very little.

But, all of these facts seems to fly out the window during a national or state level crisis. This is why executives love a good crisis. During a crisis, Americans, and people in general, look to and demand that executives become more than they are Constitutionally empowered to become. Really, people look for a King during a crisis. And executives are more than willing to take such a role and rarely do they ever give up the power they acquire during the crisis. So, with each subsequent crisis the executives’ power grows and expands upon itself.

And I’m not making this up. There is a slew of research to back up these claims. Read this quote from an academic paper of mine looking at this very topic:

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“Robert Cushman (1944) says, ‘No nation has ever fought a tough war without overriding for the duration some of the civil liberties of its people’ (1). Justice Thurgood Marshall says, ‘History teaches that grave threats to liberty often come in times of urgency, when Constitutional rights seem too extravagant to endure’. This acknowledged curtailment of civil liberties for security during a war or crisis has been a cause for concern for many government officials and citizens alike. Further, data support the claim that liberty is sacrificed for security during war. Epstein et al (2005) find that, indeed, for non-war related cases dealing with issues of liberty and security, Supreme Court rulings favor security over liberty to a higher extent during war than during times of peace.”

Many times, executives adopt the powers of a King whenever they declare a “State of Emergency”. We’ve seen many flamboyant displays of Kingship by many U.S. governors throughout the coronavirus months. It’s about time we the people educate ourselves about where our governors and executives get the power to do what they do and learn whether or not it is Constitutional.

One: Americans Want a Stronger Executive During a Crisis

So, friends, we the people are the first and most important source of power for executives during a crisis. Why? Because we usually quickly demand that someone fix the problem (crisis). Historically, that someone has not been our local governments, local communities, churches, friends and family or even the legislature. That someone is almost always the executive, be it the U.S. president or the state governor.

Here’s a quote from the same academic paper I referenced above:

“Research has shown that citizens are more willing to lower their support for civil liberties the more their sense of threat increases (Davis and Silver, 2004; Hetherington and Suhay, 2011). This means that there is a correlation between an individuals’ feelings of physical security and desire for civil liberties. ‘Many average Americans become susceptible to ’authoritarian thinking’ when they perceive a grave threat to their safety’( Hetherington and Suhay, 2011, 546).”

So, that’s a big deal. We are likely to begin advocating for authoritarian power if we feel endangered.

Let that sink in.

Two: The Other Branches Defer to the Executive During a Crisis

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This is a statistical fact, something that political scientists have studied and proven time and time again. When there’s a crisis, the legislative and judicial branches defer to the executive branch. In other words, the other two branches step back from their role of checking executive power and allow executive power to run rampant.

Why?

Well, research shows that when the executive branch has popular support from the citizenry, the other branches of government are more deferential to the executive (Dragu and Polborn, 2013; Hardin, 2004). “The citizens’ demand for more security not only provides democratic legitimacy to executive discretionary powers but also ensures that the executive uses its discretion efficiently”(2013, 512).

So, during a time of crisis, the executive begins to embrace tyrannical authoritarian powers and the other two branches either stand by and let it happen or participate in giving that power to the executive. A huge reason for this deference?

The immense support that the executive begins to have from the citizenry during a crisis. The legislative branches don’t want to irritate their constituents by countering the power of the executive and “the judicial branch is concerned about legitimacy, therefore, the overall mood of the citizenry could be one of the environmental factors that contributes to the court’s willingness to rule in favor of security at the expense of civil liberties after a war or national tragedy (Clark, 2009; Ginn, Searles and Jones, 2014).”

So yes, there is ample evidence to support the fact that whenever there is a crisis, liberties are always sacrificed for security. As I quoted above, “history teaches that grave threats to liberty often come in times of urgency, when Constitutional rights seem too extravagant to endure”. – Justice Thurgood Marshall

Quite a frightening statement. This reality has had devastating long term effects on the Constitution and Constitutional rights, both at the state and federal level.

As businesses and individuals struggle to survive amidst governor mandated lockdowns, we’re all starting to recognize the dark side of legitimizing executive authoritarian power.

Three: The U.S. Constitution Gives No Provision for Suspension During a Time of Crisis

So, I’ve established for y’all that the executive does have extra-constitutional and authoritarian power during a crisis, largely as a result of citizen demand and subsequent legislative and judicial deference. However, what I have not said throughout this article is whether or not this power is somehow legitimized by the Constitution.

So, when the legislative defers to the executive or writes a law that gives emergency powers to the executive during a crisis, are they operating off of a Constitutional directive/provision or have they moved into the realm of arbitrary power? In other words, is the legislative giving away power they don’t even have themselves and therefore don’t have the power to give away?

The answer is pretty straight forward as it pertains to the U.S. Constitution. According to the Congressional Research Service: “With the exception of the habeas corpus clause, the Constitution makes no allowance for the suspension of any of its provisions during a national emergency.

african american woman in face mask during work

Indeed, that’s pretty straight forward. So, I’ll swiftly dispel the lie that somehow the Constitution gives permission to suspend the Constitution during a crisis. I’m not sure where the notion that the Constitution should be suspended, Constitutionally, during a crisis, originated, but it is false.

Habeas corpus, or the right to a fair trail and protection against indefinite incarceration without said trail, is the only Constitutional right the Constitution allows to be temporarily suspended, in “Cases of Rebellion of Invasion”. According to the Cornell Law School Legal Information Center:

Only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative actions or through an express delegation to the Executive. The Executive does not have the independent authority to suspend the writ.”

So, even the one Constitutional provision that can be suspended, can only be suspended by Congress, not the executive.

Read the Constitution for yourself, there’s nothing in there that provides the executive the right to become a King during a crisis, nor gives the legislative or judicial branches the right to delegate to the executive extra-constitutional power during a crisis. This means that if these branches do allow such executive power, they themselves are violating the Constitution.

Four: Almost all Executive Power During a Crisis Comes from Pre-Existing Legislative Emergency Laws and Are Not Constitutional Powers but Implied or Inherent Powers

Now, I haven’t read through every state constitution in the U.S. … yet. I have read the North Carolina Constitution and there is nothing in our constitution to justify or warrant the emergency powers that our executive now possesses…even if some of those powers come from a legislative statute, namely, the North Carolina Emergency Management Act (although, he’s even skirting the directives given in this law as well).

hands with latex gloves holding a globe with a face mask

Many proponents of executive power during a crisis argue that such powers are implied or inherent. They use phrases like “promote the general welfare” or “necessary and proper” to justify extra-constitutional arbitrary emergency powers. Don’t be fooled, the context of these phrases debunks such mythical arguments. (Of course, these are phrases from the U.S. Constitution and should not be used to justify state level executive power anyway.)

So, much of the executive power we’ve seen run rampant in the U.S. states today is not constitutionally justifiable, no matter what many people argue. Unless the state constitution itself explicitly says that its rule over the state government can be suspended during a crisis, or directly gives the state legislatures the right to give authoritarian and extra-constitutional powers to the executive during a crisis (and how is crisis defined?), every single one of the U.S. governors, using their executive orders as if they are law to dictate how private individuals are running their lives and businesses, are acting unconstitutionally and arbitrarily.

This is something the founders, who eschewed any potential authoritarian power like the one they escaped under the English King, would never ever approve of.

Conclusion

It’s our job as citizens to know these things. Go, read your state constitutions and educate yourself on the constitutional legitimacy of your executives’ power.

We need to stop demanding for an authoritarian executive every time a good crisis comes around. Because, eventually, after enough good crises, we won’t have a say on how authoritarian our executive is.

Madison knew it in his time, may we remember it now: “Crisis is the rallying cry of the tyrant”.

The Liberty Belle

Works Cited:

Clark, Tom S. 2009. “The Separation of Powers, Court Curbing, and Judicial Legitimacy.” American Journal of Political Science 53(4): 971–89.

Cushman, Robert E. 1944. “Civil Liberties After the War.” The American Political Science Review 38(1): 1–20.

Davis, Darren W., and Brian D. Silver. 2004. “Civil Liberties vs. Security: Public Opinion in the Context of the Terrorist Attacks on America.” American Journal of Political Science 48(1): 28–46.

Dragu, Tiberiu, and Mattias Polborn. 2014. “The Rule of Law in the Fight against Terrorism.” American Journal of Political Science 58(2): 511–25.

Epstein, Lee, Daniel E Ho, Gary King, and Jeffrey A Segal. 2005. The Supreme Court During
Crisis: How War Affects only Non-War Cases. New York University Law Review 80: 1– 116.

Ginn, Martha Humphries, Kathleen Searles, and Amanda Jones. 2014. “Vouching for the Court? How High Stakes Affect Knowledge and Support of the Supreme Court.” Justice System Journal: 1–17.

Hardin, Russell. 2004. “Civil Liberties in the Era of Mass Terrorism.” The Journal of Ethics 8(1): 77–95.

Hetherington, Marc J., and Elizabeth Suhay. 2011. “Authoritarianism, Threat, and Americans’ Support for the War on Terror.” American Journal of Political Science 55(3): 546–60.

3 thoughts on “Is a “State of Emergency” Constitutional? Four Facts”

  1. So ignoring the fact that you decided without any backing that the legislative is the most important branch (despite the clear exisitence of checks and balances), if the governor of a state is given clear emergency powers by the legislature, is is not his or her duty to exercise those powers in time of emergency?

    1. C. McMasters Ph.D.

      Thanks for the comment. Great questions! So, I’m not the one who said the legislative is the most important branch, the founders and John Locke all said the legislative is the most important branch. It’s not really a question. What laws would the executive execute without a lawmaking branch or the judicial interpret without a lawmaking branch? Literally, the other two branches would dissolve without the legislative branch. It is the most important branch because it makes law and because it is most connected to the people–which is why it makes law. What is government if it does not make law? Now, of course, checks and balances spread the wealth a little bit, but that still doesn’t change the fact that according to the founders, the legislative is the "first branch" and was for them, the branch they were most concerned about containing, since it was the most powerful and the only branch that could make law.
      That’s a really great question! So, I’d ask, if the legislature gave clear emergency powers to the executive to round up and put into internment camps all Japanese citizens during a crisis, should the executive respect the Constitution or the legislature? The Constitution should always win.

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