The President seems tailor-made for emergencies. He alone is capable of responding to a crisis with the necessary energy, decision, and force, all the while accountable to Congress and the people. The Constitution not only obliges him to take a solemn oath to preserve, protect, and defend it, it grants him a crucial role in thwarting rebellions and invasions. Little wonder that on some accounts, the Founders ceded the President a broad emergency power, either via the grant of executive power or the Commander in Chief Clause. Surprisingly few have examined the claim in any detail. This Article brings to light evidence on the President’s role in emergencies, concluding that the original Constitution rendered the Presidency constitutionally imbecilic. At the founding, the President lacked constitutional authority to seize property, suspend habeas corpus, or impose martial law, whatever the circumstances. We know this because the Presidency’s immediate predecessors also had grants of executive power and commander in chief authority. Nonetheless, they were decidedly feckless in crises, at least as a matter of their constitutional authority. The only time they could seize property, detain indefinitely, or try civilians before military courts was when their legislatures authorized such acts. Because the Constitution never marked a departure from the previous regime — because it never expressly granted the President such far-reaching crisis powers — it implicitly incorporated the pre-constitutional regime of impotent executives. Indeed, for decades after ratification, it remained clear to many that the Constitution never granted the President authority to seize property, suspend habeas corpus, or try civilians before military courts. Gradually, this imbecilic theory of Article II yielded to more robust conceptions of presidential power, with President Abraham Lincoln pressing executive crisis authority to new heights during the Civil War. Lincoln’s example looms over modern discussions of presidential emergency power, making respectable what once was unthinkable. The imbecilic executive has been supplanted by a muscular crisis executive.
For the over half-million people currently homeless in the United States, the U.S. Constitution has historically provided little help: it is strongly...
It has been a big moment for court reform. President Biden has proposed a slate of important if vaguely defined reforms, including a new ethics regime...
At points in American history, there have been significant, even massive shifts in constitutional understandings, doctrines, and practices. Apparently...
Celebrating Charles Ogletree, Jr. comes naturally to so many people because he served not only as a tireless champion of equality and justice, but...
In recent years, several popularly elected leaders have moved to consolidate their power by eroding checks and balances. Courts are commonly the...
Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like...
Does the U.S. Constitution protect the affirmative right to vote? Those focusing on the Constitution’s text say no. Yet, the Supreme Court has treated...
In their article, The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel J. Chin and Paul Finkelman make a...
The recently enacted Respect for Marriage Act is important bipartisan legislation that will protect same-sex marriage if the Supreme Court overrules...
An upcoming Supreme Court case on Article III standing and disability presents critical questions about the future of litigation that promotes...
Moore v. United States raises the question whether unrealized gains, such as an increase in property value or a stock portfolio, constitute “incomes...
Gradualism should have won out in Dobbs v. Jackson Women’s Health, exerting gravitational influence on the majority and dissenters alike. In general...
The United States has granted reparations for a variety of historical injustices, from imprisonment of Japanese Americans during the Second World War...
Today, legal culture is shaped by One Big Question: should courts, particularly the US Supreme Court, have a lot of power? This question is affecting...
Constitutional review is the power of a body, usually a court, to assess whether law or government action complies with the constitution. Originating...
This chapter reflects on whether and how large-N empirical studies can help our understanding of constitutional identity. It argues that although we...
This paper, prepared for the 2023 Clifford Symposium on “New Torts” at DePaul Law School, addresses the tort of offensive battery. This is an ancient...
It is conventional wisdom that the states are free—within wide constitutional parameters—to structure their governments as they want. This Article...