Emergency Powers

• Author: Louis Fisher
• Pages: 886-887

Page 886

As justifications for taking emergency action without first receiving legislative authority, chief executives from different countries have relied on "reason of state" (raison d'état) and "prerogative." JOHN LOCKE, in the Second Treatise on Civil Government (1690), defined prerogative as the power to act "according to discretion for the common good, without the prescription of the law and sometimes even against it.?" More concise is the maxim salus populi suprema lex: the safety of the people is the supreme law.

The United States Constitution contains few provisions for emergency power. Congress has the power to meet emergencies by passing LEGISLATION. Under Article I, section 8, Congress may declare war and call forth the militia to suppress insurrections and to repel invasions. Article II authorizes the President to convene Congress "on extraordinary Occasions" for the purpose of enacting emergency legislation.

An exception to this statutory process is implied in the debates at the CONSTITUTIONAL CONVENTION. The Framers recognized that the President might have to begin military operations for defensive purposes before Congress could act. When one of the delegates proposed that Congress be empowered to "make war," it was objected that legislative proceedings might at times be too slow for the safety of the country. "Declare" was substituted for "make," giving Congress the power to declare war but allowing the President discretionary authority "to repel sudden attacks."

For twentieth-century America, the concept of "defensive war" has expanded to include military actions far beyond the nation's borders. The long drawn-out war in Southeast Asia led to the WAR POWERS RESOLUTION of 1973, an effort to reconcile the war-making power of the President with the war-declaring power of Congress. The statute attempts to insure the "collective judgment" of both branches by requiring the President to consult with Congress "in every possible instance," to report to Congress within forty-eight hours after introducing forces into hostilities, and to withdraw those forces unless he receives congressional support within sixty or ninety days. Congress may at any time during this period pass a CONCURRENT RESOLUTION (which is not subject to veto) directing the President to remove forces engaged in hostilities. The consultation and reporting provisions have had mixed results. The LEGISLATIVE VETO mechanism in the War Powers...