Using emergency as a cause for action ultimately leads to an almost unnoticed evolution in the political understanding of presidential powers. The Constitution of the United States, however, was designed to function under “states of exception,” most notably through the separation of powers, and provides ample internal checks on emergency actions taken under claims of necessity. This book urges the United States Congress, the courts, and other bodies to put those checks into practice. The book analyzes the constitutional norms that fail to guide and constrain the choice of action through an ana ... More

Using emergency as a cause for action ultimately leads to an almost unnoticed evolution in the political understanding of presidential powers. The Constitution of the United States, however, was designed to function under “states of exception,” most notably through the separation of powers, and provides ample internal checks on emergency actions taken under claims of necessity. This book urges the United States Congress, the courts, and other bodies to put those checks into practice. The book analyzes the constitutional norms that fail to guide and constrain the choice of action through an analysis of what is appropriate. It explores how constitutional norms always apply as unavoidably normative constitutional questions during an emergency. It explains how necessity can produce dictatorship, because the people are willing to allow whatever it takes to solve their immediate needs, and it looks into the theory that a president might suspend the constitutional order in order to post hoc political accountability. It then talks about necessity that enables presidential discretion, and responds to arguments regarding the president having all the power that necessity confers. The book considers the scope of implied presidential power, arguing that even if there is power to do what is necessary, it is still constrained by conceptions of what is proper. It emphasizes how deference to the president is inconsistent with a constitutional tradition that preciously guards decisions about liberty. The book concludes with a review of the commitment to constitutional values as a constitutive feature of political identity in American constitutionalism.