148 EMERGENCIES AND THE LIMITS OF LEGALITY THE POLITICAL CONSTITUTION OF EMERGENCY POWERS 149 that is, to determine when the regime of ordinary law is to be displaced by rules out, conceptually, the possibility that the President will accede to the something else.' How does this play out in a reasonably well-functioning courts' determination. " In such circumstances, on Schmitt's account the democracy confronted with a situation that some significant political courts are sovereign, but so what? My point here is simply H.L.A. Hart's - actors contend presents an emergency that requires the displacement of that a legal system's rule of recognition is determined by habits of acqui- ordinary law?10 escence on the part of officials, which habits are routinely although not Suppose, then, that the nation's constitution purports to limit the cir- always followed. 15 cumstances under which the regime of exception can displace ordinary My point here is quite general. As Tom Campbell, and Eric Posner law." The US Constitution, for example, allows Congress to suspend the and Adrian Vermeule, in their own ways, argue, we can readily construct privilege of the writ of habeas corpus only 'when in Cases of Rebellion systems regulating emergencies that have two components." In one, there or Invasion the public Safety may require it'."- Suppose that the President are rule-like conditions under which emergencies can be declared and an decides on his own to suspend the writ and that someone challenges the enumeration of the special powers government actors have and the rights action in court. Nothing rules out, conceptually, the possibility that the that may (and cannot) be altered during the emergency. As Campbell courts will declare the President's actions unconstitutional either because emphasises, there is no conceptual reason why we could not have one set the President may not suspend the writ without congressional approval of rules for one type of emergency, another set for another - as we have perhaps retrospective, perhaps not) or because the circumstances did not different rules applicable to zoning in urban and rural areas." present a 'rebellion' or 'invasion."And - the crucial point here - nothing Schmitt argued and most commentators, including Campbell, and Pos- ner and Vermeule, seem to agree, this component is always going to be " I have sometimes puzzled over the distinction between ordinary law and the exception incomplete. Circumstances will present themselves in which important within a legal realist universe: As I understand it, the regime of the exception is one in which the decision-maker exercises discretion uncontrolled by law. But, to a legal realist, decision- legal actors contend, and with some reason, that the situation they face making pursuant to ordinary law is fully discretionary and uncontrolled by law, though subject to other constraints. I take up aspects of this perspective later. My puzzlement about the distinction is deepened when I consider that Schmitt's 'decisionism' seems to me quite claims are justiciable, see A.L. Tyler, 'Is Suspension a Political Question?" (2006) 59 Stanford similar to, if not the same as, American legal realism's view of legal decision-making; if that Law Review 333. is correct, or even close to correct, the distinction between ordinary law and the regime of H Much of the literature I have read on the relevance of Schmitt to contemporary law assumes, exception seems to me exceedingly difficult to sustain. perhaps accurately, that executives will rarely, or perhaps never, accede to such judicial rul- " I put the question in this way to emphasise that 'emergencies' do not present themselves ings. My point here is a conceptual one, but it may be worth noting the remarkable events as forces of nature independent of whatever people do. The claim that a nation faces an described in G. Williams, 'The Case That Stopped a Coup? The Rule of Law and Constitu- emergency is just that, a claim inserted into the regular operation of political life and tionalism in Fiji' (2002) 1 Oxford University Commonwealth Law Journal 73 ( describing a - therefore - subject to contestation by other significant political actors, if they choose judicial decision holding a military coup unlawful, to which the military rulers acceded). to do so. For an argument that US Supreme Court Justice Oliver Wendell Holmes, Jr, Canada's Emergencies Act 1985, c.22, s.62(2) requires that exercises of power during emer- believed, to the contrary, that the existence of an emergency was a matter of ordinary fact, gencies be reviewed by a parliamentary committee that includes at least one member from see A. Vermeule, 'Holmes on Emergencies' (forthcoming). each party that has a membership of twelve or more in the House of Commons, and one " I draw here on my discussion in M. Tushnet, 'Comment: Meditations on Carl Schmitt' member from each party in the (appointed) Senate. The provision has not been imple- (2006) 40 Georgia Law Review 877. mented since enactment, but its clear intention is to ensure that the executive government : U.S. Const. Art I, s.9, cl.2. submit its actions to review by members of parties that might not share the executive's view I emphasise that my concern here is with conceptual possibilities, not empirical ones, and of the emergency's nature. am not contending that as a matter of present-day US constitutional law the courts would 15 See Dyzenhaus, The Constitution of Law, p. 38. in fact find the President's actions unconstitutional. The proposition that suspension of 16 T. Campbell, 'Emergency Strategies for Prescriptive Legal Positivists: Anti-Terrorist Law the writ requires congressional approval seems nearly universally accepted by constitu- and Legal Theory' (Chapter 9), this volume; E.A. Posner and A. Vermeule, Terror in tional scholars, and has not been rejected even in the aggressive litigating positions taken the Balance: Security, Liberty and the Courts (New York: Oxford University Press, 2007), by the Bush administration. Justice Antonin Scalia asserted, without supporting argu- pp. 38-9. ment, that Suspension Clause claims are non-justiciable. Hamdi v. Rumsfeld 542 US 507 17 Canada's Emergency Act distinguishes among public welfare emergencies (arising from (2004). natural disasters or epidemics), public order emergencies (mostly, domestic disorders), I am sceptical about that assertion, at least with respect to the question of whether the international emergencies (essentially, international disputes short of war) and war emer- condition of 'invasion' or rebellion' exists. For a broad argument that Suspension Clause gencies. Each type of emergency has different procedural and substantive effects.The political constitution of emergency powers: some conceptual issues MARK TUSHNET How are norms regulating the organised exercise of public coercion - that is, state power embedded in institutions? Legal scholars tend to assume that law provides the only institutional form for the normative regulation of state power. Starting from the competing positions of Professors Dyzen- halts and Gross, l argue here that we can regulate state power through a normatively infused politics. My argument is largely conceptual - that is. aimed at establishing the possibility of such a politics I leave to another day the identication of the empirical circumstances under which such a politics can arise and offer a realistic alternative to legal regulation of state power.' Professors Dyzenhaus and Gross disagree over haw law should regu- late the exercise of emergency powers, but, I will argue, both start from a conceptual framework in which only law has value that is simultane- ously normative and institutional.: Strikingly. Professor Dyzenhaus. who seems more deeply committed to the exclusivity of law as a system of normative regulation of state power, actually leaves more space for a nor- matively infused politics than does Professor Cross. 1 will argue as well that we ought to acknowledge the possibility, and the fact (on occasion), that the institutions of ordinary politics can be the vehicle for normative ' As all participants in the discussion of the legal control of emergency powers agree. courts in general have not imposed slmng constraints on the exercise of such powers, The standard metaphor is that courts are weak reeds that bend under pressure and upon which littleweight should be put, The standard for a normatively infused politics as a realistic alternative to legal contmlt then. must be that such a politics is no weaker a read than are the courts. not that it is 1| strung protection against abusive exercise of [Iowa 3 I do not contend. [hat is. that either author denies the possih ty of normative evaluation of how emergency power is exercised. in the register of morality i do argue. though, that lhcy see law as the only institutional form that normative evaluation can lake: I45 140 EMERGENCIES AND THE LIMITS OF LEGALITY THE POLITICAL CONSTITUTION OF EMERGENCY POWERS 147 regulation of the exercise of emergency powers.' If I am correct, we should that those contemplating extra-legal action will come to expect ex post add a third model to those proposed by Professors Dyzenhaus and Gross, endorsement rather than ex post repudiation, at least within their lifetimes. a model in which we would pay close attention to the ways in which pol- From one common point of view, the practices in which such officials itics, in its operation, can (sometimes) control the exercise of emergency engage take on normative weight - that is, become law - as the actions powers.* accumulate. Practice becomes a non-judicial precedent in shaping the law. Even though Professor Gross attaches the label extra-legal to his model, In these ways, the space is comprehensively occupied by law: ordinary law he is committed to the proposition that law occupies the entire institutional outside the boundaries of the extra-legal measures model and retrospective space of normative evaluation of emergency powers. This comes out in law within its boundaries. several ways. First, Professor Gross insists that the boundaries of his model Most of Professor Dyzenhaus's discussion is devoted to examining pre- are themselves set by law." Of course he does not contend that officials cisely how far we can get with the assumption that law can and should can always act outside the law and accept the possibility of subsequent control the exercise of emergency powers.' He argues, for example, that legal evaluation of their actions. Rather, he offers criteria - legal criteria - courts should strive to interpret statutes authorising extraordinary mea- for identifying when officials permissible invoke the extra-legal measures sures to comply with basic rights, and that they should interpret narrowly model. Second, again obviously, the retrospective evaluation he commends statutes that purport to deprive courts of jurisdiction to evaluate exercises is done through law, by means of subsequent punishment or ratification of emergency powers for consistency with the rule of law. Suppose, though, or restitutionary payments to victims of what come to be seen as improper that a legislature adopts a privative clause whose terms are unequivocal. exercises of emergency powers and the like." Third, consider the possibility, Doing so does not, according to Professor Dyzenhaus, relieve the legis- which everyone who has addressed Professor Gross's model thinks is large, lature of the obligation to comply with the rule of law in its substantive enactments. Indeed, he argues, the privative clause may simply bring to the fore the legislature's ever-present obligation to comply with the rule I note that one could challenge the opposition I draw by observing that the institutions of law. In this sense, Professor Dyzenhaus is committed to the proposition of politics are themselves constituted by law and so that in the last instance law does that politics is normatively infused. indeed provide the only institutionalised means of normative evaluation. I am not sure that much turns on this point, but if it does I would defend my position with a version of the Politics is the obvious alternative to law as a means of regulating the proposition, important in what follows, that the institutions of law are constituted (in the exercise of emergency powers - not politics as mere preference or the last instance) by social practices, which, if they are normatively freighted, are so antecedent exercise of power for its own sake, but a principled or moralised politics. to the law The combination of law, including requirements for clear statements of Two additional preliminary notes: ( 1 ) This third model was, I now think, what I was grasping for when I came up with the term extra-constitutional to describe an alternative to Professor the sort Professor Dyzenhaus thinks desirable and a moralised politics Gross's 'extra-legal measures model. See M. Tushnet, 'Defending Korematsu?: Reflections might do quite well - that is, might satisfy any reasonable requirements on Civil Liberties in Wartime' (2003) Wisconsin Law Review 273. I no longer think that that we might think a decent rule-of-law system must satisfy. term is useful. (2) I have begun to give some empirical flesh to the conceptual model in works in progress. See M. Tushnet, 'The Political Constitution of Emergency Powers: Some Oddly, I think the best way to make credible the component involving Lessons from Hamdan' (2007) 91 Minnesota Law Review 1451; M. Tushnet, "The Political a moralised politics is via Carl Schmitt. To start, we can consider the Constitution of Emergency Powers: Parliamentary and Separation-of-Powers Regulation' implications of the proposition that the sovereign is the person - or, (2008) 3 International Journal of Law in Context 275. importantly, institution - that has the power to determine 'the exception', See L..M. Seidman, 'The Secret Life of the Political Question Doctrine' (2004) 37 John Marshall Law Review 41. " Professor Gross suggests that this formulation overlooks the social and informal sanctions and approvals that might be applied retrospectively. I am not persuaded. His examples For a more extended development of the argument in this paragraph, see M. Tushnet, 'Book involve formal acts - awarding or withholding decorations and promotions - that occur Review' [2007] Public Law 604, reviewing Dyzenhaus, The Constitution of Law: Legality in within the legal system. Actions by civil society, such as invitations to conferences or awards a Time of Emergency (Cambridge: Cambridge University Press, 2006). from non-governmental organisations are so obviously subject to partisan manipulation I do not pretend to be a scholar of Schmitt's thought and so use his work (to the extent I that I doubt that they could ever satisfy the requirements of Professor Gross's model. understand it) as the vehicle for laying out my views.150 EMERGENCIES AND THE LIMITS OF LEGALITY THE POLITICAL CONSTITUTION OF EMERGENCY POWERS 151 falls outside the rule-based component, either because the events do not Although for expository purposes I have developed the argument with neatly fit the triggering conditions or because the situation demands more reference to courts, the basic point is quite general: sovereignty in Schmitt's power or greater restrictions on rights than are authorised by the appli- sense - the power to determine when the regime of exception comes into cable rule. Then the second component of the system could come into play - is lodged institutionally and the institution in which it is lodged play. Here the law states a general standard." Government actors do what is not necessarily the highest official in the executive branch. That leaves they think the law authorises and their actions are assessed (later) by room for politics to constrain the exercise of emergency powers.-- the courts. Conceptually, nothing prevents the courts from determining Suppose we agree with Dyzenhaus that courts quite frequently flag in that what the actors did failed to satisfy the requirements of the legal their defence of the rule of law. On the view sketched here, that is not standard. 19 a counsel of despair or only a goad for urging the courts to do better. From a legal realist perspective, one might say that the courts qua We can consider the possibility that politics conducted in parliaments, sovereign are not constrained by law and so they are simply exercising separation-of-powers legislatures, bureaucracies and civil society will fill their power under the guise of law."" But even the most hard-line legal in the 'rule-of-law' gaps - not black holes - that the courts put up with or realists contend only that courts are not constrained by law, not that create. The kind of politics I have in mind is a (partly) moralised politics, courts are unconstrained. For realists, constraints on the exercise of legal in which political leaders appeal for support on the basis of moral claims in power result from sociology and politics. Judges, for example, may feel addition to appealing for support on the basis of constituents' non-moral themselves bound to act in one rather than another way because of the preferences."' So, for example, leaders might contend, as they have, that norms of their profession, including a norm that a judge must understand engaging in torture is simply not what we as Americans do. Once again, his or her decisions to follow from law rather than mere power. They there is nothing in the concept of politics that excludes the possibility might be selected through political processes that significantly limit the that these appeals will succeed. The institutional location of sovereignty range of preferences judges have, so that when they simply exercise their in a system characterised by a partially moralised politics opens up the sheer power they do so for relatively conventional ends. possibility of real-world limits on the exercise of emergency powers. To this point, I have argued (a) that nothing conceptually interesting " The Spanish term extraordinary and urgent necessity' seems a good example. Constitution follows from the proposition that sovereignty is lodged in the institution of Spain 1978, Art. 86. 19 Again, two points. (1) The only difference between the retrospective evaluation of compli- " It has occurred to me that this point is obscured by the conventional English translation ance with a standard and Gross's extra-legal measures model, it seems to me, is that under of Schmitt's famous opening sentence as 'Sovereign is he who decides on the exception' the latter, actors acknowledge at the time of action that their decisions are illegal while (emphasis added ). under the former they contend that their actions are lawful. In both, though, there is a Although I do not provide it here. a full account would examine the politics of - that is. retrospective evaluation of the actors' decisions. (And, frankly, it seems to me unrealistic within - executive bureaucracies, to undermine the proposition that a nation's president to think that, given the openness of any set of legal provisions under even a moderate legal or prime minister can simply sit down and decide to declare a state of emergency all on his realist view, any legal actor would ever find it necessary to acknowledge illegality rather or her own. than assert legality.) (2) Even under the first rule-based component of the system I am Tushnet, 'Some Lessons from Hamdan, argues that even a purely interest-based politics describing, evaluation is inevitably retrospective because there is always a temporal lag can produce restrictions on the exercise of power during emergencies. between action and evaluation, except to the extent that officials might be more reluctant Obviously this is not an empirical claim by the leaders. Rather, it is a moral one: we ought or slower to 'breach' a clear rule - and move into the standard-based component if there not understand ourselves as Americans to be a people who treat torture as a permissible s one. Here my sense is that discussion has been distorted by a continental sense that practice. egal actors always comply with clear rules and do not, for example, seek to exploit their I suspect that someone with a Schmittian view of politics as 'friend versus enemy' would ambiguities. contend that the very concept of politics excludes moralised appeals of this sort. For what I do not want to make anything of the fact that in the scenario I have described, the it is worth, I note that I find Schmitt's notion of the exception more interesting than courts intervene to stop the executive's exercise of emergency powers, because I believe his 'friend-enemy' analysis of politics. Perhaps my reference to a moralised politics in that nothing conceptually rules out the possibility that the courts themselves could declare which who we are as Americans' plays a role reflects an implicit commitment to the that an emergency exists, driving home the point that in systems where significant political friend-enemy conception, but I think not, or at least not in any interesting way: all that actors regularly accede to judicial decisions, the courts are the sovereign in Schmitt's conception requires is some enemy and conceptually 'space aliens' would do, preserving sense iberalism's commitment to a universalism among 'persons'.157- EMERGENCIES AND THE LIMITS OF LEGALITV that determines when to create a state of exception and (b) that the inter- esting questions are how. when and whether sociological and political constraints operate in the institutional processes for determining to create a state of exception. These latter questions are ofcourse empirical and not conceptual ones. The whether question is a particularly important one. Sociological and political constraints, being empirical. can fail to operate or be absent}0 Many commentators worry that modern conditions make such failures more likely. The form of the usual argument is incomplete, in my view. Commentators observe that chief executives over the course of the past century have made increasingly strong claims about the neces- sity of accreting power to them and that sometimes power has actually so accreted. What is missing in the discussion, though, is an analysis of exactly why the political and sociological constraints on the success ofsuch claims failed. Often the examples come from political systems that were not well-functioning democracies prior to the emetgency's declaration or express worries about what either did turn out to be or in the case of the current situation in the United States. might turn out to be relatively shortterm problems: I conclude with a brief discussion on how the perspective developed here might inform our understanding of what Professor Dyzenhaus and others call legal black holes.\" These are areas (physical or legal) ill which the courts play no role whatever in regulating the exercise of power. At least in US constitutional law, the proposition that there are legal black holes is actually uncontroversial. The so-called political questions doctrine identies questions of constitutional law on which the courts simply will not rule.\" No one worries much, except as a matter of abstract theory. -"' I try to identify the circumstances in which political constraints (thought not necessarily sociological ones) might be prone to fail in a US-style separation of powers system ill Tushnet. 'Snme Lessons froln Hamdan', and suggest that failure ot' political Constraints is more likely. though not guaranteed. in systems ofparlialnentury supremacy in Tushnel. 'l'itrliittnemary and Scpnration-ofPmt'ers chulation'. i am inclined to think that a formulation that is 'intultnneously more general and niurr precise would include well-functioning dentocracle. nd moderately authoritarian systems and would take the criterion to be whether the deviation from the system's normal - that is. non-emergency functioning is large enough to make plausible the claim Ihitt a spiral into complete authoritarianism is quite likely 3\" The 'black holes' metaphor blends two allusions. The rst is to the Black Hole ot'Calcutta. a single cell in which nearly 150 soldiers were conned overnight and where many died The second is to the black holes of astrophysics. concentrated dots of matter with such high masses that light cannot escape. and which suck all matter nearby into them. I" Nixon V. Ullilt'rl Struts 506 US 224 ( l993l. THE POLITICAL CONSTITUTION OF EMERGENCY POWERS 153 about the existence of black holes of this sort and for good reason: political questions can be identied in substantial part by considering whether the political constraints on decision-makers are at least as strong as those that would be applied were the courts to intervene.\" The Military Commissions Act of 2006 purports to deprive the federal courts of all jurisdiction over some claims by those held by the United States as unlawful combatants.\" Assume that. as a matter of positive US law. this denial of judicial intervention is constitutionalc The Military Commissions Act would thus create a legal black hole.'2 The concern with such black holes is that they may exist within an otherwise reasonably wellfunctioning democratic system.\" Yet. the perspective developed here requires that we look beyond the fact that courts will not intervene, to ask whether there are political constraints on the exercise of power over enemy combatants. Without contending that those now being detained have always been treated in a manner comporting with minimal human rights requirementsfN I think there is reason to believe that there are such constraints now operating. Public revelations about executive ofcials' behaviour have generated legislative so See ltL Tushnet. 'Law and Prudence in the Law oflustlciabilily: The Transformation and Disappearance of the Political Question Doctrinc' (1002) 80 NanIl Carolina Law Review IZOST The Art authorises some degree of review of the determination of whether a person is properly held as an enemy combatant. but none. as far as appeals, over claims that the conditions under which the person is held satisfy minimum constitutional requirements. including the requirement that persons held under the authority of the United States. and within itsjurisdiction. not he subjected to cruel and unusual punishment. (The review of a person's designation as an enemy combatant may he so limited as to be one of Professor Dyunhaus's 'weak reeds'.) - it may be worth noting that. in the United States. for a long time prisons generally were such black holes. See Riiju v. Connnmnvenllli, 62 Va. (21 Gran.) 790. 796( IS?! l (describing prisoners as 'slaves or the State'). And thereby lack one of the characteristics of physical black holes. the power to suck into their domain everything in their neighbourhood. Sometimes one hears a concern expressed that recognising the existence of one legal black hole threatens liberty generally. because the principles used to justify the existence of one black hole are available to justify the existence of many more. Yet. we can see that legal black holes do not inherently suck everything into their domain by observing that US constitutional law goes along well enough to satisfy sensible requirements for a 'rule-oflaw' system despite the existence of the political question doctrine. 1 note that examples of gross human rights violations have not yet been legally validated in the United States; that is. we do not yet knmv whether such violations did in fact fall into a legal black (or grey) hole Again l emphasise that we cannot show that there are legal black holes by identi ing (him; made by executive ofcials (or non-pill icy making commentators or advocatesl that their actions are in fact not subject tojudicial evaluation