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Published online by Cambridge University Press: 05 August 2009
For two hundred years the United States, with its theory of the separation of powers, has presented a compelling argument on behalf of presidential government. In contrast to the parliamentary system alternative offered by Great Britain, the American credo posits that the surest preventive against tyrannical rule lies in the deliberate parceling out, rather than concentration, or fusion, of political power. Proof of its validity, insist proponents of the separated powers doctrine, has been demonstrated on numerous occasions, even—nay, especially—in times of national emergency.
1 Rossiter, Clinton, Constitutional Dictatorship (New York, 1963), p. 154Google Scholar. The book was first published in 1948 by Princeton University Press.
2 In April 1866, the Supreme Court rendered its famous decision in Ex parte Milligan, unanimously holding a military commission authorized by the president for the trial of civilians in nonmilitary areas during the war to have been unlawful. Taking issue with Lincoln's earlier theory of necessity, Justice Davis counseled: “It could well be said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation.” Philosophical questions aside, the Court's decision came to be regarded as a bulwark of American civil liberty. Procedures for the exercise of emergency powers and equitable controls upon their use are fundamental. Ultimately there are constitutional constraints upon a unilateral executive response to perceived emergency. Unwilling to interfere with presidential action during a crisis itself the Supreme Court nevertheless would reserve the prerogative of reviewing emergency measures afterward, determining their constitutionality and rectifying injustices caused by them.
3 Almost all statutes providing specific or broad general authority during the New Deal referred to the fact that an emergency existed. In 1933 a National Emergency Council was created to supervise and coordinate the various governmental activities.
4 Koenig, Louis W., The Chief Executive (New York, 1968), p. 390Google Scholar.
5 de Grazia, Alfred, “The Myth of the President,” in The Presidency, ed. Wildavsky, Aaron (Boston, 1969), p. 66Google Scholar. Hughes, Emmet John similarly argues that a president has the ability “not merely to focus, nor clearly to obscure, but plainly to make critical issues” (The Living Presidency [Baltimore, 1974], p. 229)Google Scholar.
6 Fulbright, J. William, The Crippled Giant (New York, 1972), p. 202Google Scholar.
7 Special Committee on the Termination of the National Emergency, Summary of Emergency Power Statutes (Washington, 1973), p. 6Google Scholar.
8 U.S., Congress, Senate, Congressional Record, 93rd Cong., 2nd sess., 1974, 120Google Scholar, pt. 25: 34013.
9 Emergency Power Statutes, p. 4.