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.
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.
Meyer and Berenbaum analyze the national security policy challenge in balancing protections for Intelligence Community whistleblowers and the government’s legitimate need for secrecy in order to execute the federal intelligence and counterintelligence mission. It is that need for secrecy that creates the intellectual distance between the sovereign’s requirement for information regarding the performance of the federal intelligence and counterintelligence mission and the ability to conduct that mission.
