Article

Emergency Lawmaking after 9/11 and 7/7

Adrian Vermeule

Professor of Law, Harvard Law School

I wish to acknowledge a general debt of inspiration to Mark Tushnet’s studies of political controls on emergency powers, although my views differ from Tushnet’s. See generally, for example, Mark Tushnet, The Political Constitution of Emergency Powers: Some Lessons from Hamdan, 91 Minn L Rev 1451 (2007); Mark Tushnet, The Political Constitution of Emergency Powers: Parliamentary and Separation-of-Powers Regulation, 3 Intl J L in Context 275 (2008). For helpful comments, thanks to Jack Goldsmith, Eric Posner, Philip Rumney, Matthew Stephenson, Cass Sunstein, Mark Tushnet, workshop participants at Harvard Law School, and participants at a conference held at Harvard Law School to discuss Cass R. Sunstein, Worst-case Scenarios (Harvard 2007). Thanks to Elisabeth Theodore and Jennifer Shkabatur for helpful research assistance.

Legislation passed in response to a serious terrorist attack is frequently criticized on two different grounds. First, the critic argues that the legislation grants “too much” power to the executive, relative to some substantive benchmark. Second, the critic impeaches the process by which the legislation was enacted, arguing that it was hasty, ill deliberated or ill informed, or panic-ridden. In practice, these substantive and procedural claims are often run together. Critics say that hasty or panicky emergency legislation systematically tends to grant the executive a blank check.

The claim of defective process relies on the circumstances of emergency lawmaking. On this view, the fog of uncertainty, emotions such as urgency and visceral fear, and the tendency of legislators and the public to “rally ‘round the flag,” all conspire to cause legislators to vote massive new powers to the executive, regardless of whether those powers are rationally justifiable. By contrast, my thesis will be that the circumstances of emergency lawmaking do not create a systematic tilt towards increasing executive power beyond the point that a rational legislature would specify. The very forces that empower the executive in emergency lawmaking also hamper the executive’s ability to obtain the legislation it desires. The emotions unleashed by an emergency, the perceived need to react urgently, the widespread sense of political solidarity transcending partisanship, and the radical uncertainty of the situation—all these can be and are exploited by civil libertarians, the political opposition, and other camps in order to constrain the transfer of new powers to the executive.

TABLE OF CONTENTS