Law, Emergencies, and the Constitution: A Review of Outside the Law: Emergency and Executive Power

Abstract

This article analyzes Clement Fatovic’s recent book, Outside the Law: Emergency and Executive Power a scholarly examination of thinking on executive power in emergencies by delegates to our Constitutional Convention and by political writers who influenced them. Fatovic concludes that the President does and should have the “prerogative” to act outside or even contrary to the law in emergencies. Mr. Abbott disagrees. Outside the Law demonstrates that the delegates to the Constitutional Convention understood the importance of executive power in emergencies and the Constitution which emerged in 1787 did indeed bestow broad executive power on the President. But it did not authorize the President to exercise “prerogative” in emergencies in violation of law. Nor would reliance on undefined “prerogative” for authority to act foster the planning and training which is so important to successful emergency response.