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06/05/2022

Gerald Dickinson: Reviving Liberal Constitutionalism with Originalism in Emergency Powers Doctrine
Michael Ramsey

Gerald S. Dickinson (University of Pittsburgh - School of Law) has posted Reviving Liberal Constitutionalism with Originalism in Emergency Powers Doctrine (Journal of National Security Law and Policy, Vol. 12, p. 203, 2022) (31 pages) on SSRN.  Here is the abstract:

Recent scholarship suggests the executive power is, at its core, merely the power to “carry out projects defined by a prior exercise of the legislative power” and to implement “substantive legal requirements and authorities that were created somewhere else.” Few, if any, scholars, however, have drawn a link between the original understanding of the Executive Power Clause and its relationship to emergency powers doctrine under the theory of liberal constitutionalism. This Essay addresses this gap in the scholarship, and offers musings about the doctrinal and political implications of an originalist reading of the Executive Power Clause in relation to crisis government and emergency powers doctrine. If, as scholar Julian Davis Mortenson argues, Article II is to be read as merely the power to execute the laws and nothing more, then we must question whether our longstanding expansive view of emergency powers, as derived from Article II, is also wrong. If so, what are the political and doctrinal implications for a narrowed, originalist understanding of Article II in times of emergency?

This Essay proceeds in three Parts. Part I sets forth the traditional theories of emergency powers. From the absolutist to the relativist to the liberal, these competing theories have established the basic frameworks that attempt to resolve tensions between law and necessity during times of crisis.15 While the liberal theory dominated discourse and action in the early Republic, the relativist view has become the dominant view of emergency powers. Part II will seek to revive liberal constitutionalism in emergency powers doctrine by focusing on recent scholarship arguing that the Law Execution theory of executive power meant the power “was conceptually an empty vessel until there were laws or instructions that needed executing” by the legislature. Like the relativist theory of emergency powers displacing liberal constitutionalism, the Royal Residuum Theory likewise has long dispatched the Law Execution theory in executive powers interpretation. Yet, a revised originalist interpretation of the Law Execution theory is based in seventeenth and eighteenth-century originalism where the “ordinary meaning of ‘executive power’ referred unambiguously to a single, discrete, and potent authority” to simply execute the laws created by the legislature. This Essay seeks to supplement an original understanding of the Article II Executive Powers Clause with liberal constitutionalism’s theory that is based on a Madisonian-centric conception of government. Part III offers musings on the political and doctrinal implications of a resuscitated vision of liberal constitutionalism and emergency powers under the Law Execution Theory of executive powers.

I don't accept Professor Mortenson's view of the original meaning of executive power (see here) but I also don't think the original meaning of executive power includes an emergency power (that is, a power to do things in "emergencies" [however defined] that cannot be done in ordinary times).  I think the founding generation would have thought that quite a dangerous power, and I don't see any evidence that it was conveyed by the Constitution.