Emergency powers of the executive: the president's authority when all hell breaks loose.

• Author: Friedman, Joshua L.

1. 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).

1. INTRODUCTION

   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. (13) As long as the President followed his duty to faithfully execute the laws of the United States and to preserve, protect and defend the Constitution, he operated within his constitutional authority.

   Within the perspective of Hamilton's admonition against limiting executive authority, this Article endeavors to generally discuss the historical and recent separation of powers issues arising with an active executive branch. Part II gives a brief overview of executive powers and their limitations: first discussing what actions are strictly executive in character, and then presenting Congress' attempts to question the executive's emergency powers and addressing the Judicial branch's struggle with finding a balance between judicial oversight and political question doctrine. Part HI reviews specifically enumerated powers of the executive in emergencies where executive action is justified by the constitution, such as the evolution of emergency executive powers during wartime, force majeure, and, later on, public health emergencies. Posse commitatus, martial law, and immediate response principles are also discussed at length in this vein. In Part IV, the public health emergency section delves into the powers available to the executive, whether it be the President under his federal constitutional authority or the Governor under his State police powers--regardless of executive authority, how far may the executive go without overstepping the bonds of liberty.

   Ultimately, this Article posits that the broad grant of executive authority in exigent circumstances is warranted. "With no time for ex ante deliberation, and no metric for ex post assessments, the executive's capacities for swift, vigorous, and secretive action are at a premium." (14) The executive must be ready, willing, and able to act immediately following a national disaster such as a public health emergency where quarantine or isolation principles require the immediate segregation of the populace, presumably against their wishes. (15) In such a case, where the executive acts in favor of the whole, (16) he must not be unduly hindered by judicial review or congressional authority. The constitutional powers of the executive are constantly changing, and are certainly broader than those envisioned in the days of Hamilton and Madison. The original constitutional authority reflected the concerns of the eighteenth century and was not "well adapted to current conditions." (17)

2. THE AXIS OVERSIGHT

   1. Executive Commander in Chief Powers

      The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.

      --Alexander Hamilton (18)

      The constitutional executive powers vested in the President provide him with the ability to speedily act in the nation's interest. "Decision, activity, secrecy, and dispatch will generally characterise [sic] the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number." (19) The President is vested with these powers to maintain the common good on behalf of societal interest. (20)

      The Founders intended to create a government that was "clothed with all the powers requisite to [the] complete execution of its trust." (21) Congress is granted wide latitude in its authority over the military and the execution of the laws. (22) Article I, Section 8 of the United States Constitution grants Congress the power to "declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." (23) Congress may also raise, maintain, and provide support for the army (24) and navy, (25) "make [r]ules for the [g]overnment and [r]egulation of the land and naval [f]orces," (26) and may "[call] forth the [m]ilitia to execute the [l]aws ... suppress insurrections and repel Invasions." (27) Finally, Congress is entrusted with the ability to organize, arm, and discipline the militia, and to "make all [1]aws which shall be necessary and proper" to execute these powers. (28) These military powers provide Congress with control over undeclared, as well as declared, actions of war. (29)

      Conversely, Article II of the Constitution establishes the President as "[c]ommander in [c]hief of the [a]rmy and [n]avy of the United States, and of the [m]ilitia of the several [s]tates, when called into the actual [s]ervice of the United States." (30) Article II, Section 1, vests the "executive power" with the President, and requires that he faithfully execute the laws of the United States (31) and dictates that the President must, to the best of his abilities, "preserve, protect and defend the Constitution of the United States." (32)

      Article II, Section 2, entails the Commander-in-Chief powers of the President with the power to be "Commander in Chief of the [a]rmy and [n]avy of the United States." (33) This provides him with "supreme command over the land and naval forces of the country," (34) and he may order the armed forces to perform any necessary military duties as appropriate for the defense of the United States. (35) The President may also "dispose of troops and equipment in such manner and on such duties as best to promote the safety of the country," (36) and to "effectuate the defense of the United States." (37) These specific powers accorded to the President exist both in times of peace, as well as in times of war. (38)

      The President is also tasked to recommend to Congress consideration "such [m]easures as he shall judge necessary and expedient." (39) In any emergency scenario, the President may take unilateral action before seeking Congressional approval, and, when the opportunity presents itself, may subsequently seek verification from Congress. (40) According to John Locke, this unrestrained power can be a concern and a potential threat to the liberty of the people.

      [T]he Reigns of good Princes have been always most dangerous to the Liberties of their People. For when their Successors, managing the Government with...