Emergency Powers of the President

There’s a storm brewing over the grant of emergency powers in favor of the President to address the issue on water and power shortage in the face of a drought. Let’s not discuss the merits of such grant, but let’s discuss the Constitutional basis thereof.

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions are the elements of intensity, variety, and perception. Emergencies, as perceived by legislature or executive in the United States since 1933, have been occasioned by a wide range of situations, classifiable under 3 principal heads: (a) economic; (b) natural disaster; and (c) national security.

Emergency, as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect.

There’s a distinction between the Presidents authority to declare a “state of national emergency” and to “exercise emergency powers.” The President has the power to declare a “state of national emergency” even without authorization from Congress. The exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a different matter. This requires a delegation from Congress.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing the Congress to delegate such powers to the President. Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus:

  • (1) There must be a war or other emergency.
  • (2) The delegation must be for a limited period only.
  • (3) The delegation must be subject to such restrictions as the Congress may prescribe.
  • (4) The emergency powers must be exercised to carry out a national policy declared by Congress.

There are various political theories relating to the power of the President in times of emergency:

John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative to cope with the problem of emergency. In times of danger to the nation, positive law enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of action necessary to avert catastrophe. In these situations, the Crown retained a prerogative “power to act according to discretion for the public good, without the proscription of the law and sometimes even against it.” But Locke recognized that this moral restraint might not suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to the prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that “the people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to Heaven.”

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of government in time of emergency. Rosseau did not fear the abuse of the emergency dictatorship or “supreme magistracy” as he termed it. For him, it would more likely be cheapened by “indiscreet use.” He was unwilling to rely upon an “appeal to heaven.” Instead, he relied upon a tenure of office of prescribed duration to avoid perpetuation of the dictatorship.

John Stuart Mill concluded his ardent defense of representative government: “I am far from condemning, in cases of extreme necessity, the assumption of absolute power in the form of a temporary dictatorship.”

Nicollo Machiavelli view of emergency powers, as one element in the whole scheme of limited government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized and attempted to bridge this chasm in democratic political theory. Machiavelli — in contrast to Locke, Rosseau and Mill — sought to incorporate into the constitution a regularized system of standby emergency powers to be invoked with suitable checks and controls in time of national danger. He attempted forthrightly to meet the problem of combining a capacious reserve of power and speed and vigor in its application in time of emergency, with effective constitutional restraints.

Contemporary political theorists, addressing themselves to the problem of response to emergency by constitutional democracies, have employed the doctrine of constitutional dictatorship. Frederick M. Watkins saw “no reason why absolutism should not be used as a means for the defense of liberal institutions, provided it serves to protect established institutions from the danger of permanent injury in a period of temporary emergency and is followed by a prompt return to the previous forms of political life.” He recognized the two (2) key elements of the problem of emergency governance, as well as all constitutional governance: increasing administrative powers of the executive, while at the same time “imposing limitation upon that power.” Watkins placed his real faith in a scheme of constitutional dictatorship. These are the conditions of success of such a dictatorship: “The period of dictatorship must be relatively short. Dictatorship should always be strictly legitimate in character. Final authority to determine the need for dictatorship in any given case must never rest with the dictator himself and the objective of such an emergency dictatorship should be strict political conservatism.”

Carl J. Friedrich cast his analysis in terms similar to those of Watkins. It is a problem of concentrating power “in a government where power has consciously been divided” to cope with a “situations of unprecedented magnitude and gravity. There must be a broad grant of powers, subject to equally strong limitations as to who shall exercise such powers, when, for how long, and to what end.” Friedrich, too, offered criteria for judging the adequacy of any of scheme of emergency powers, to wit: “The emergency executive must be appointed by constitutional means, i.e., he must be legitimate; he should not enjoy power to determine the existence of an emergency; emergency powers should be exercised under a strict time limitation; and last, the objective of emergency action must be the defense of the constitutional order.

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme of “constitutional dictatorship” as solution to the vexing problems presented by emergency. Like Watkins and Friedrich, he stated a priori the conditions of success of the “constitutional dictatorship”. Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did Watkins. He would secure to Congress final responsibility for declaring the existence or termination of an emergency, and he places great faith in the effectiveness of congressional investigating committees.

Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in saying that, “the suggestion that democracies surrender the control of government to an authoritarian ruler in time of grave danger to the nation is not based upon sound constitutional theory.” To appraise emergency power in terms of constitutional dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not whether the term “dictator” is used in its normal sense (as applied to authoritarian rulers) or is employed to embrace all chief executives administering emergency powers. However used, “constitutional dictatorship” cannot be divorced from the implication of suspension of the processes of constitutionalism. Thus, they favored instead the “concept of constitutionalism” articulated by Charles H. McIlwain:

A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers, and which is consistent with the findings of this study, is that formulated by Charles H. McIlwain. While it does not by any means necessarily exclude some indeterminate limitations upon the substantive powers of government, full emphasis is placed upon procedural limitations, and political responsibility. McIlwain clearly recognized the need to repose adequate power in government. And in discussing the meaning of constitutionalism, he insisted that the historical and proper test of constitutionalism was the existence of adequate processes for keeping government responsible. He refused to equate constitutionalism with the enfeebling of government by an exaggerated emphasis upon separation of powers and substantive limitations on governmental power. He found that the really effective checks on despotism have consisted not in the weakening of government but, but rather in the limiting of it; between which there is a great and very significant difference. In associating constitutionalism with “limited” as distinguished from “weak” government, McIlwain meant government limited to the orderly procedure of law as opposed to the processes of force. The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of government to the governed.

In the final analysis, the various approaches to emergency of the above political theorists – from Locke’s “theory of prerogative,” to Watkins’ doctrine of “constitutional dictatorship” and, eventually, to McIlwain’s “principle of constitutionalism” — ultimately aim to solve one real problem in emergency governance, i.e., that of allotting increasing areas of discretionary power to the Chief Executive, while insuring that such powers will be exercised with a sense of political responsibility and under effective limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a government in the concept of Justice Jackson’s “balanced power structure.” Executive, legislative, and judicial powers are dispersed to the President, the Congress, and the Supreme Court, respectively. Each is supreme within its own sphere. But none has the monopoly of power in times of emergency. Each branch is given a role to serve as limitation or check upon the other. This system does not weaken the President, it just limits his power, using the language of McIlwain. In other words, in times of emergency, our Constitution reasonably demands that we repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive but, at the same time, it obliges him to operate within carefully prescribed procedural limitations.

[Source: Supreme Court. See also: Government Take-Over of Private Businesses, Emergency Powers of the President]

P&L Law

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