Tag Archives: Emergency Powers

On the Precipice: Democracy, Disaster, and the State Emergency Powers That Govern Elections in Crises

In times of crisis, states may grant their executives emergency powers that can be expansive in scope often with few, if any, legislative or statutory safeguards. When elections overlap with emergencies, as happened in 2020 when the US presidential election coincided with the Coronavirus pandemic, state emergency statutes enable officials to modify the administration of elections, reshaping how Americans vote.

Author Dakota Foster takes a hard look at the use of state emergency powers during elections and the impact that the broad use of these powers can have on the democratic process. By examining the legal underpinnings of these powers in statute and court precedent, as well as their real-world application across Florida, Texas, and California in 2020, Foster explores an intersection—state emergency powers and elections—that is both under-studied and primed for abuse.

Foster argues that as election administration becomes increasingly politicized, and as governors face increased pressure from national parties, the emergency powers intended to safeguard democracy’s most vital instrument—elections—could be harnessed to democracy’s detriment.

Roosevelt’s “Limited” National Emergency: Crisis Powers in the Emergency Proclamation and Economic Studies of 1939

Shortly after Nazi Germany invaded Poland in 1939, President Franklin D. Roosevelt issued a proclamation of a “limited” national emergency. This proclamation cited no statutory or inherent authority. Alden Fletcher looks to the historical record to suggest Roosevelt’s proclamation was relying on ambiguous statutes that provided for executive power to declare emergencies or take emergency action.

Fletcher finds that even as Roosevelt acted independently to issue an emergency declaration, his administration recognized that such a declaration could be regulated by Congress or reviewed by the courts. Indeed, Fletcher finds historical memos, papers, and briefings showing that the theories advanced by Roosevelt’s Justice Department implicitly accepted a flexible doctrine in part because inter-branch checks were presumed to remain open. This historic approach stands in contrast to today’s Executive Branch practice—and Fletcher concludes that today’s practitioners would do well to remember it.

Reviving Liberal Constitutionalism With Originalism in Emergency Powers Doctrine

Legal scholars have theorized three models of Article II’s Executive Power clause, otherwise known as the Executive Vesting clause: first the cross-reference theory, which points to specific powers under Article II, such as the appointment power; second, the Royal Residuum theory, which interprets Article II as granting wide-ranging powers possessed by the eighteenth-century British Crown; and finally, the Law Execution theory, which holds that the Executive Power Clause grants nothing more that the power to execute the laws passed by the legislature.

When applied to emergency powers, political and doctrinal consensus has coalesced around the Royal Residuum theory, granting the executive broad power to deal with emergencies so long as the executive does not run afoul of existing Constitutional or statutory prohibition. Recent scholarship, however, suggests that the original meaning of the Executive Power clause supports a “Law Execution” understanding of the clause. Building on this scholarship, Jerry Dickinson suggests that applying the original meaning of the Executive Power clause can revive a concept of liberal constitutionalism that places Madisonian checks and balances back at the center of emergency powers.