The power of crisis: An intellectual history of the theory of executive emergency power
DePlato, Justin P.
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In light of the September 11, 2001 attacks scholarly debate arose regarding the theory of executive emergency powers. With the release of the Office of Legal Counsel Memos many suggested the Bush administration used emergency powers inappropriately, or more boldly, unconstitutionally. However, little of the research conducted on the matter used thorough empirics to explain the constitutional schemas for exercising executive emergency power, either: An unfettered executive prerogative that determines how an executive exercises emergency power that may go beyond the scope of law, or may be an inherent constitutional power granted to the executive implicitly in the constitution, or a schema whereby constitutional provisions may explicitly authorize the exercise of executive emergency power, thereby granting that power and also limiting that power. My research examines the theory of executive emergency powers to determine first, the intellectual history explaining the theoretical conceptualizations of executive emergency power to determine why executive's have such powers (tracing linearly back to classical thought- Plato, Aristotle, Cicero, to Renaissance- Machiavelli, Hobbes, Locke, Rousseau, and modern though- Rossiter, Watkins, Friedrich and John Yoo); secondly, my research examines the American Framers' debate over executive emergency powers, specifically between Federalists and Anti-Federalists to determine whether or not emergency powers are inherent in the Constitution whereby authorizing executive prerogative to determine how to exercise emergency power; thirdly, my research examines early American presidential rhetoric and writings to determine presidential interpretation and support of an American model of emergency power; fourthly, my research examines President Lincoln's rhetoric, and writings to determine his interpretation of emergency powers which evidenced Lincoln's support for the Hamiltonian American model of such powers; finally, my research examined President G.W Bush's interpretation of emergency powers following 9-11 which evidenced his support for the Hamiltonian American model for exercising emergency power. In sum the findings indicate America presidents' support an interpretation of executive emergency power whereby executive prerogative determines how to exercise emergency power and that power is inherent constitutional power lawfully granted to an executive under authority given to him in Article II of the Constitution. The finding is consistent with the intellectual history of the theoretical conceptualization of executive emergency power principally anchored in Locke's prerogative emergency power model. Conversely, the American model rejects the explicit constitutional schema for determining and authorizing executive emergency power. Of the presidents, studied in this dissertation, all of which used emergency powers to combat a domestic national interest or emergency, they are consistent in supporting the American model of executive emergency power, whereby executive prerogative determines how to exercise that power and their use of emergency power is an inherent constitutional power lawfully granted to an executive under authority given to him in Article II of the Constitution.. I suggest that executive emergency powers in the United States, during a crisis, the Constitution guides executive prerogative determining how to exercise emergency power, but the Constitution does not become a barrier to emergency power. In other words, when there is a crisis presidential power is abundant, and may place pressure on the merits of the Constitution. This, however, does not make the power unconstitutional, instead the executive may draw upon all the powers enlisted in the Constitution beyond Article II to combat the crisis.