Overcoming Necessity: Emergency, Constraint, and the Meanings of American Constitutionalism

An argument for why emergencies are no excuse for extralegal action by presidents

Using emergency as a cause for action ultimately leads to an almost unnoticed evolution in the political understanding of presidential powers. The Constitution, however, was designed to function under “states of exception,” most notably through the separation of powers, and provides ample internal checks on emergency actions taken under claims of necessity. Thomas Crocker urges Congress, the courts, and other bodies to put those checks into practice.