Powers of the President during crises

by J. Malcolm Smith; Cornelius P. Cotter

Contemporary Theorists

Contemporary political theorists, addressing themselves to the problem of response to emergency by constitutional democracies, have employed the doctrine of constitutional dictatorship. Criticism of their schemes for emergency governance is made difficult by the ambiguities latent in the terminology they adopt. An effort is made below to distinguish between those who mean dictatorship when they say dictatorship, and those who say dictatorship when they mean to refer to any effort by constitutional government to respond adequately to emergency conditions. However idiosyncratic the individual definitions of dictatorship, the theories of constitutional dictatorship explicitly or implicitly posit a transition in time of emergency from the processes of constitutionalism to those of an outright or slightly modified authoritarian system.

Frederick M. Watkins, who is responsible for the classic study of the Weimar experience with emergency powers,[28] appears to have based his general discussion of emergency powers upon a priori reasoning rather than upon empirical research.[29] Provided it “serves to protect established institutions from the danger of permanent injury in a period of temporary emergency, and is followed by a prompt return to the previous forms of political life,” Watkins can see “no reason why absolutism should not be used as a means for the defense of liberal institutions.”[30] He recognized the two key elements of the problem of emergency governance, as well as all constitutional governance: increasing administrative powers of the executive while at the same time “imposing limitations upon that power.”[31] He rejects legislative checks upon the exercise of executive emergency powers as an effective method of imposing such limitations, for “it is clearly unrealistic to rely on a government-controlled majority in the legislature to exercise effective supervision over that same government in its use of emergency powers.”[32] On the other hand, judicial review of executive emergency action on its merits is regarded with admiration tempered only by regret at the delay inherent in judicial proceedings.[33]

Watkins places his real faith in a scheme of “constitutional dictatorship.” These are the conditions of success of such a dictatorship: “The period of dictatorship must be relatively short.... Dictatorship should always be strictly legitimate in character.... Final authority to determine the need for dictatorship in any given case must never rest with the dictator himself....”[34] The objective of such an emergency dictatorship should be “strict political conservatism.”

“Radical social and economic measures may, of course, be necessary as a means of preventing political change.... Boldly inventive as it may be in other directions, however, a truly constitutional dictatorship must always aim at the maintenance of an existing status quo in the field of constitutional law. Deviations from the established norms of political action may be necessary for the time being. The function of a truly constitutional dictatorship is to provide such deviations and at the same time to make sure that they do not go any further than is actually necessary under the circumstances.”[35]

Carl J. Friedrich casts his analysis in terms similar to those of Watkins.[36] It is a problem of concentrating power—in a government where power has consciously been divided—“to cope with ... situations of unprecedented magnitude and gravity.[37] There must be a broad grant of powers, subject to equally strong limitations as to who shall exercise such powers, when, for how long, and to what end.”[38] Professor Friedrich, too, offers criteria for judging the adequacy of any scheme of emergency powers. The emergency executive (“dictator”) must be appointed by constitutional means—i.e., he must be legitimate; he should not himself enjoy power to determine the existence of an emergency (and here, strangely enough, he finds the United States and Great Britain conforming to the criterion); emergency powers should be exercised under a strict time limitation; and last, the objective of emergency action must be the defense of the constitutional order.[39]

Recognizing that “there are no ultimate institutional safeguards available for insuring that emergency powers be used for the purpose of preserving the constitution” excepting “the people’s own determination to see them so used,” Friedrich nonetheless sees some indefinite but influential role which the courts, even though “helpless in the face of a real emergency,” may play to restrict the use of emergency powers to legitimate goals. They may “act as a sort of keeper of the President’s and the people’s conscience.”[40]

Clinton L. Rossiter, after surveying the recent history of the employment of emergency powers in Great Britain, France, Weimar Germany, and the United States, reverts to a description of a scheme of “constitutional dictatorship” as solution to the vexing problems presented by emergency.[41] Like Watkins and Friedrich, he is concerned to state, a priori, the conditions of success of the “constitutional dictatorship.”

“1. No general regime or particular institution of constitutional dictatorship should be initiated unless it is necessary or even indispensable to the preservation of the state and its constitutional order....

“2. ... the decision to institute a constitutional dictatorship should never be in the hands of the man or men who will constitute the dictator....”[42]

“3. No government should initiate a constitutional dictatorship without making specific provision for its termination....

“4. ... all uses of emergency powers and all readjustments in the organization of the government should be effected in pursuit of constitutional or legal requirements....

“5. ... no dictatorial institution should be adopted, no right invaded, no regular procedure altered any more than is absolutely necessary for the conquest of the particular crisis....

“6. The measures adopted in the prosecution of a constitutional dictatorship should never be permanent in character or effect....

“7. The dictatorship should be carried on by persons representative of every part of the citizenry interested in the defense of the existing constitutional order....

“8. Ultimate responsibility should be maintained for every action taken under a constitutional dictatorship....

“9. The decision to terminate a constitutional dictatorship, like the decision to institute one, should never be in the hands of the man or men who constitute the dictator....

“10. No constitutional dictatorship should extend beyond the termination of the crisis for which it was instituted....

“11. ... the termination of the crisis must be followed by as complete a return as possible to the political and governmental conditions existing prior to the initiation of the constitutional dictatorship....”[43]

Rossiter accords to the legislature (in the case of the United States, at any rate) a far greater role in the oversight of executive exercise of emergency powers than does Watkins. He would secure to Congress final responsibility for declaring the existence or termination of an emergency,[44] and he places great faith in the effectiveness of congressional investigating committees.[45] In this work he offers no clear statement of the proposed relationship of the judiciary to his scheme of “constitutional dictatorship.” In a subsequent study, he concluded on the basis of a critical review of the Supreme Court that it was impotent “as overseer and interpreter of the war powers.”[46]