Emergency Powers

The need for powers that exceed ordinary limits emerged along with the concept of limited, republican, or constitutional government in the Roman era. When confronted with a direct threat to the constitutional system itself, the Roman Senate could decide to appoint a dictator for a period of no more than six months. During that time, however, the dictator exercised unrestrained power, limited only by that individual's own commitment to the republic itself. The dictator was appointed not to destroy or replace the existing system, but to save or conserve it. This provision was revived in the modern era first by Niccolò Machiavelli, who defended the assignment of extraordinary power to a ruler to make it possible to save the society as well as its political institutions. The conviction that a constitutional system required the ability to cope with unexpected, and immediate, threats to the system itself was embraced by John Locke and Jean-Jacques Rousseau.

But how would these powers be invoked, and how might they be controlled differed in different systems. Some—including Germany and France—made explicit provisions for the assignment of extraordinary power to the executive in a crisis. This practice was particularly essential in the constitution of Weimar Germany, which came into effect after World War I. The emergency provisions in the Weimar constitution were invoked more than 200 times, initially to combat violent insurrection and direct threats to the maintenance of the constitutional system itself. In the early 1930s, however, these provisions were invoked with increasing frequency to combat a wide range of social and domestic problems, including economic failure. Although these provisions probably allowed Weimar Germany to survive, ultimately, these provisions also allowed Adolf Hitler to seize and consolidate his power, formally exercising the constitution's emergency powers as chancellor in 1933. Hitler's exercise of power found intellectual support in the writing of Carl Schmitt, who insisted that no constitution can possibly provide for all contingencies, and who insisted that the executive must be able to act beyond the limits of ordinary law if liberal democracy itself is to survive.

Modern Germany has made provisions for a constitutional court empowered to check the abuse of emergency power, but, along with France, continues the practice of constitutionally defined emergency powers to be assigned to the executive. Others, like Great Britain, insist on legislative sovereignty and provide for emergency power through ordinary legislation, though legislation that can and does formally delegate extraordinary power to the executive, as the British Parliament has done on a number of occasions. The U.S. Constitution provides limited emergency power, allowing for the suspension of ordinary judicial process in the event of war, invasion, or rebellion—but this authority is granted to Congress, rather than to the president.

The attacks on New York City and Washington, DC, on September 11, 2001, and in London on July 7, 2005, ushered in a new wave of concern about the need for emergency power. Both nations passed new statutes delegating new power to the executive, and in the United States, the battle against terrorism has generated an extended discussion on the reach of (and limits to) executive power. Emergency powers debates are not limited to the West, of course, and have been particularly relevant in Eastern Europe, Africa, Latin America, and South Asia, where newly consolidating democracies have struggled with challenges to their survival and with the abuse of delegated power, notably in India in 1971, Russia in the 1990s, and in the former Yugoslav Republic.

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