St. Mary's Law Journal


During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? Unfortunately, hindsight suggests many previously court-condoned uses of emergency powers have resulted in a usurpation of civil rights enshrined in the Constitution. The courts, it seems, are not immune to possession by fear, resulting in irrational, unproportionate action.

Allowance of emergency power presents a classic slippery-slope dilemma, but their denial may be worse; government officials may not act to protect societal welfare in the face of national or local emergency. This Comment does not seek to provide an answer to the divide among courts and scholars. Instead, it canvasses courts’ treatment of emergency powers and recommends a future solution refuse resort to all-or-nothing politics. It also argues a realistic standard is the only reasonable approach in light of a doctrine so vulnerable to circumstance. In 2005, Professor Wayne McCormack undertook a survey of potential answers to the emergency powers question in his article Emergency Powers & Terrorism, noting three camps: “Yes,” “No,” and “Maybe.” The vast majority of arguments fall into one of these three categories. Professor McCormack’s article, however, engages in a criticism of any bright-line rule and prescribes a more balanced approach to emergency powers. While extra-constitutional powers certainly exist in times of crisis, the focus should be on shepherding their use and protecting them from abuse.

Both a recognition and analysis of the benefits and dangers realized from emergency powers, this Comment endeavors to reconcile courts’ priorities when confronted either by catastrophe or by the illusion of catastrophe.

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St. Mary's University School of Law


Brent A. Bauer