Holmes on emergencies.

• Author: Vermeule, Adrian

INTRODUCTION I. SOURCES AND CONTEXT II. EMERGENCIES AS A QUESTION OF FACT A. The Allocation of Institutional Competence B. A Note on Beginnings and Endings C. Risks, Harms, and the Desires of Dominant Forces D. Emergencies and the Imminence of Harm III. ANTIMINIMALISM IV. NO NONDEROGABLE RIGHTS A. Emergencies and Liberty B. Emergencies and Property C. Emergencies and Free Speech V. Ex POST SUNSETTING AND OTHER CHECKS A. Legislative Control B. Ex Post Sunsetting by Judges VI. COMMON LAW REGULATION OF EMERGENCIES INTRODUCTION

It seems odd that despite the torrent of writing on emergencies and the law after 9/11, no one has systematically examined the view of emergencies held by our greatest judge. (1) Perhaps the problem is that Justice Holmes has so often been subdivided along doctrinal lines. There is the Holmes of free speech law, represented by the majority opinion in Schenck v. United States (2) and by the dissents in Abrams v. United States (3) and Gitlow v. New York. (4) There is the Holmes of property and takings law, represented by the majority opinion in Pennsylvania Coal Co. v. McMahon. (5) There is the Holmes of due process law, represented by the dissents in Lochner v. New York (6) and Tyson & Bro. v. Banton. (7) And no one much talks about the Holmes opinions first upholding and then invalidating emergency rent control, Block v. Hirsh (8) and Chastleton Corp. v. Sinclair, (9) or about the opinion upholding emergency executive detention in Moyer v. Peabody. (10) In what follows, part of my aim is to suggest that what doctrine has put asunder, a focus on emergencies can reunite. Emergencies are a central theme of Holmes's jurisprudence, one that cuts across doctrinal categories and clarifies theoretical puzzles.

My central suggestion is that Holmes's judicial and extrajudicial writings, in their best light, implicitly suggest a coherent account of emergencies, law, and constitutional adjudication. I will call this account the epistemic theory of emergencies, with the caveat that I use "theory" not in any rigorous way but just to indicate that Holmes tended to approach questions of emergency powers with a distinctive set of prejudices. We will see that, quite characteristically, Holmes was suggestive but not systematic about his theoretical premises. Despite the ambiguities, however, it is possible to reconstruct a Holmesian account of emergencies that is both plausible and (I hope) theoretically fresh.

The main elements of Holmes's account are these:

(1) The existence and duration of an emergency are questions of fact. Emergencies are intrinsically temporary events, so it is also a question of fact whether an emergency, once begun, has since ended. Judges will give epistemic deference to other officials--they will treat those officials' claims about the existence of an emergency as important information--but ultimately will decide for themselves whether an emergency exists. As we will see, this factual question is the crucial predicate or trigger for Holmes's approach to judicial review during (claimed) emergencies.

(2) During emergencies courts should not practice judicial minimalism or passive virtues; they should reach out, if necessary, to declare the existence of an emergency as soon as possible and to declare the termination of an emergency as soon as possible.

(3) During emergencies there are no nonderogable rights--government can do anything if circumstances warrant.

(4) The main checks on governmental action during emergencies are that:

(a) legislative limitation of executive powers trumps, where the political branches disagree; and

(b) judges engage in ex post sunsetting, once an emergency has in fact ended, by declaring the emergency terminated and rescinding the government's emergency powers. The latter point underscores that what Holmes really offers us is a jurisprudence of emergencies; judicial review is a central component of his approach.

The structure of the discussion is as follows. Part I sketches some historical and legal context for Holmes's jurisprudence of emergencies. Part II examines Holmes's claim that the existence and duration of emergencies are questions of fact. Part III suggests that Holmes thought judicial minimalism and the passive virtues too costly during emergencies, whatever their virtues in normal times. Part IV examines the substantive scope of government power during emergencies. Part V suggests that ex post sunsetting is the principal doctrinal tool of the epistemic theory of emergencies, and explains the difference between sunsetting justified on deliberative or political grounds and on strictly empirical ones. Part VI offers a broader evaluation of Holmes's views. I suggest that the epistemic theory of emergencies is the best version of a common-law-centered strategy for regulating government action during emergencies. The main advantage of Holmes's version is that it speeds up the common law cycle of emergency adjudication, whereby common law courts initially defer to government claims of emergency and later reassert themselves. By speeding up the cycle, Holmes's approach avoids some of the main criticisms that have been leveled against the common law strategy.

Throughout, the enterprise is not biographical, historical, or doctrinal; it is theoretical. The subject is emergencies, not Holmes per se; the hope is just that by examining the views of a master, put in their best light, we can improve our understanding of emergencies, legal doctrine, and judicial review. The doctrinal point that several of Holmes's most famous opinions on emergency powers were later discarded or heavily modified by the Supreme Court11 is, for these purposes, irrelevant.

1. SOURCES AND CONTEXT

   Holmes's judicial writings on emergencies were part of a larger doctrinal current that flowed most strongly during and after World War I. Although there were earlier precedents, as there always are, it is conventional to trace this emergency powers doctrine back to Wilson v. New, (12) a 1917 decision that Holmes joined but did not author, which upheld the Adamson Act's eight-hour day for railroad workers. The statute had been enacted to avert labor unrest in a critical industry as America moved towards war, and Wilson v. New was handed down a mere three weeks before war was actually declared. (13) Chief Justice White famously stated that "although an emergency may not call into life a power which has never lived, nevertheless emergency may afford a reason for the exertion of a living power already enjoyed." (14) Wilson became a major precedent for Holmes's opinion in Block v. Hirsh, a 1921 decision upholding rent control in the District of Columbia as a valid emergency measure.

   Block in turn became a major precedent for New Dealers who attempted to justify Roosevelt's legislative program, and to defend statutes such as the National Industrial Recovery Act (NIRA) from constitutional attack, by invoking the emergency powers doctrine. (15) The effort was a massive failure. When the Court rejected the NIRA in 1935, it rejected the emergency powers doctrine as well. 16 When the Court began to uphold New Deal legislation after 1937, there were thus two switches not one; besides the switch in outcomes, there was a switch in theories, from a doctrine centering on temporary overrides of background constitutional restrictions during emergencies, to a doctrine that weakened the background restrictions themselves.

   After 1937, the emergency powers doctrine did not disappear altogether, but it was consigned to the second tier of constitutional ideas. An explicit emergency powers doctrine occasionally resurfaces in economic or peacetime contexts in American constitutional law, (17) but it is not a major doctrinal tool, although similar arguments do appear under other doctrinal rubrics, such as the "compelling interest" test. The explicit emergency powers doctrine proved more robust in contexts involving war and national security. Even there, however, invocations of emergency powers in several notorious national security cases of the 1940s and 1950s, especially Korematsu v. United States, (18) brought the doctrine into a measure of disrepute. This later distinction between war and peace, or between security emergencies and economic emergencies, was alien to Holmes's thinking: we will see that his approach to emergency powers is invariant across those differences.

   Holmes's opinions were not the first to articulate an emergency powers doctrine, but they became a leading source for that approach. When New Dealers attempted to press the emergency powers doctrine into service, they turned to Holmes's writings first and foremost. (19) Just as it would be wrong to say that the emergency powers doctrine was unique to Holmes or his creation, it would be equally wrong to say that he simply parroted extant formulations. We will see that in important cases Holmes emphasized the factual character of emergencies, in contrast to the rest of his colleagues, who would have disposed of the cases as matters of law. (20)

   In many sectors of his jurisprudence, of course, Holmes deliberately broke with his contemporaries, so it is equally illuminating that in the cases I will examine he championed an extant legal theory. And he improved upon it: although Holmes drew from background ideas and precedents, the most striking features of the epistemic theory of emergencies are distinctively his own. Let us now examine those features in detail.

2. EMERGENCIES AS A QUESTION OF FACT

   Block v. Hirsh, (21) decided in 1921, involved a federal rent control statute governing the District of Columbia. The statute was enacted in 1919, in the wake of World War I; wartime conditions and the growth of the administrative state had caused an influx of would-be tenants into Washington and a spike in demand for housing. Congress declared that the statute's provisions were "made necessary by emergencies growing out of the war, resulting...