Emergency Powers

Abstract

▪ Abstract This review considers competing models of emergency legal regulation in the aftermath of the terrorist attacks of September 11, 2001. Drawing on research in political science and political sociology, it criticizes recent debates about emergency powers among legal and constitutional scholars for ignoring the institutional dynamics of modern executive power, especially in presidential regimes. Constitutional relativists (e.g., Harvey Mansfield, Michael Stokes Paulsen, John Yoo), defenders of the extralegal model of emergency action (Oren Gross, Mark Tushnet), and common lawyers (David Cole, David Dyzenhaus) are criticized for failing to consider the pathologies likely generated by their proposals in an institutional context in which the executive possesses incentives for declaring, perpetuating, and exploiting emergency situations. Only a legal formalist perspective on emergency government (e.g., Bruce Ackerman) pays sufficient attention to the institutional dynamics of the contemporary executive.