Sunday, December 21, 2008
Professors Fionnuala Ni Aolain (U. Minn. and U. Ulster) and Oren Gross (U. Minn.) recently posted on ssrn A Skeptical View of Deference to the Executive in Times of Crisis, forthcoming in the Israel Law Review. The piece is a response to arguments for extraordinary executive powers during crises, and particularly to those in Eric Posner and Adrian Vermeule's Terror in the Balance: Security, Liberty, and the Courts. (I posted last month on Posner and Vermeule's article on extraordinary executive powers in the current financial crisis here.) The pair has taken an interesting and important comparative approach in their prior work together--see Gross and Ni Aolain, Law in Times of Crisis: Emergency Powers in Theoretical and Comparative Perspective--but this article is a rather straight-forward response to assumptions and arguments in Posner and Vermeule's book. It's well worth a look; I highly recommend it to profs and students as a primer on the issues, with the authors' other work (linked above and below) to explore the issues further.
Ni Aolain and Gross first address the claim that "civil libertarians assume governments do not act rationally when they choose to aggrandize their crisis powers . . . ." They argue that this is not only an "intellectual cheat," but that civil libertarians recognize "that there are benefits to the community and to particular groups within it when emergency powers are activated." The authors:
Most notably emergencies present opportunities to legislate which may not easily arise again. . . . [I]t is not by co-incidence that we find massive legislative enactments being produced in a period of days or weeks. . . . Both [the Prevention of Terrorism Act in the United Kingdom in 1974 and the USA Patriot Act] were massive in scope and content and neatly illustrate two points. First, that extreme events put pressure on the state to respond and that that rejoinder invariably results in legislative outcomes which are produced in circumstances vastly different from the normal. Second, that such legislative enactments are broad and deep in scope.
Next, they take on Posner and Vermeule (and other supporters of extraordinary executive powers in crises) for overemphasizing the benefits--and not adequately addressing the costs--of extraordinary executive powers. Particularly, there are unaccounted for long-term effects upon legal systems and social structures; finances, reputation, and physical structures; "repression by the state and the mobilization of violent actors in the emergency law context"; and inability to undo the emergency once it has begun.
Third, the authors argue (contrary to Posner and Vermeule and others) that there is not a zero-sum exchange between civil liberties and security; instead the two go together: Security simply cannot be effective without concern for civil liberties and human rights. And finally they argue that extraordinary powers too often mean extra-constitutional powers, "straying outside agreed constitutional boundaries, or stretching such boundaries to diminish the status and role of other branches in times of crisis." This is so because emergency powers lose sight of the "relationship between duration and emergency."
Ni Aolain and Gross make a good case on these points against extraordinary executive authority in a crisis. And they make a strong case for the importance of these issues: They worry that the U.S. experience post-9/11 might be exported--that other democracies might similarly take up the same kinds of extraordinary powers that our own President claimed in the war on terror.
This article is a wonderful primer on the issues: It provides the big-picture points clearly and concisely, leaving the details for the authors' other work (also on their ssrn pages here and here, except their book, linked above). I highly recommend it for anyone teaching or studying extraordinary powers in crises.