Emergencies, constitutions, Milligan and Padilla

[Bob Sheridan]

On the subject of the sua sponte exercise of extraordinary governmental 
powers during emergencies, the mayor of New Orleans "ordered" the 
evacuation of the city during the late dampness, which order, Mr. Amos, 
the editor of the N. Orleans Times-Picayune, said today in a radio 
interview didn't have a lot of teeth in it.  Meanwhile, the police went 
around breaking in the doors of locked and empty-of-occupants homes, 
looking for survivors, bodies, and what-not.  Police blew off the doors 
of schools and entered classrooms after tossing flash-bang grenades, on 
the same or a similar theory.  Locking ones home and evacuating proved 
fruitless to protect against theives and police.  As did braving the 
flood and arming oneself against intruders.  No matter what you did, it 
was wrong in the eyes of the state and you suffered.  Every rational 
thing you did was undermined by some allegedly rational thing done by 
the authorities.  Perhaps it is time for the development of Article 8, 
the Constitutional Law of Emergencies.

If the president, and Congress, have inherent power to expand their own 
powers to fill the needs of the moment, however extraordinary the moment 
may be, shouldn't the mayor also have such power, considering that he's 
the law West of the Pecos, or in this case the Mississippi?  What about 
the police?  Sandy noted that the police were disarming people of their 
firearms.  Confiscated a whole gun store, in fact.  I presume the Second 
Amendment folks think this is quite justified, given the need for 
extraordinary executive powers.  Or do we, as I believe Sandy suggested 
we might, have a heretofore unstated constitutional doctrine that allows 
for the suspension of the Constitution whenever the sledding gets tough, 
despite language here and there that the Constitution is meant to apply 
in hard times as well as easy.  Or maybe we have a Doctrine of 
Infinitely Expandable Emergency Powers (DIEEP) that has somehow gone 
without a name for so long.

And as long as we're delving into subterranean Conlaw looking for new 
doctrine, how deep do we have to go to find a doctrine that says if you 
mess up the environment by containing the river with levees, and thus 
lose the forests, the marshes, the wetlands, the sand dunes and other 
protective barriers that soften the impact along hurricane alley, your 
property rights and claims to government rebuilding aid are thus placed 
in legal jeopardy.

Or must the lost marshes assert standing to bring a class action for 
their own restoration?

How about the rest of the country?  Do we get a say?  After all, once 
the the living and the dead are hauled out of the filthy waters, mustn't 
we serve as the insurer of last resort, because we're all in this together?

Or has Constitutional Law not been conceived to extend to such queries?

rs





Sanford Levinson wrote:

>As I edit the next edition of our casebook, I just came across Justice
>Bradley's concurrence in Knox v. Lee, the second of the Legal Tender
>Cases, which overruled the one-year-earlier Hepburn case invalidating
>Congress's making paper money "legal tender."  As a matter of fact,
>these cases are very much "emergency power" cases, since they were
>obviously viewed as strongly linked the Congress's capacity to fight the
>War effectively.  In any event, Bradley wrote, "[I]t seems to be a
>self-evident proposition that it is invested with all those inherent and
>implied powers which, at the time of adopting the Constitution, were
>generally considered to belong to every government as such, and as being
>essential to the exercise of its functions." Given that "every
>government as such" throughout the world, save only the US government,
>was scarcely democratic or even plausibly "constitutional," what are the
>ramifications of Bradley's statement?  Is he suggesting that the
>"original intent," contra, say, Taney in Ex parte Merryman, was that
>some combination of Congress and President did indeed have all of the
>powers of George III or, perhaps, Catherine the Great?  If they could
>summarily try and even execute those they suspected of treason (or even
>compassing the death of the sovereign), then does the US retain this as
>a residual power of sovereignty, even though there is no assignment of
>any such power?  One can scarcely credit any such position, but, then, I
>didn't write Bradley's sentence.
>
>I believe that our casebook is unique in even mentioning, let alone
>excerpting and discussing, the Legal Tender Cases.  They are, to put it
>mildly, not part of the constitutional law canon.  Perhaps current
>events will make them, like Milligan, more "canonical" (or at least
>relevant).    
>
>sandy
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