“Emergency Powers”
An Apology for Undefined and Therefore Unlimited Government

[Th]e doctrine of “emergency powers” negates constitutionalism in general. By definition, a “constitution” is a charter of defined and therefore limited government. In contrast, the doctrine of “emergency powers” is an apology for undefined and therefore unlimited government. No so-called “constitution” subject to the unilateral assertion of “emergency powers” by government officials could possibly survive.”

Constitutional “Homeland Security”, Volume I, The Nation in Arms, by Dr. Edwin Vieira, Jr., page 11.

Also see “Martial Law” in America’s Founding Era • “Martial Law” Under President Lincoln • “Martial Law” Under President FDR •  “Standing Armies” “Martial Law” in the United States Today •  Current “Homeland Security”: “Top Down” Para-military Structure • “Gun Control • Militia: Immune From Contemporary “Gun Control


“Emergency Powers”: An Apology for Undefined and Therefore Unlimited Government

Bluntly put, “emergency powers” are bunkum.

In the ancient Roman Republic, the Senate could appoint a temporary dictator, and invest him with novel and often sweeping powers, to deal with extraordinary conditions. On both sides of the wall behind the Speaker’s desk in the United States House of Representatives are prominently displayed Roman fasces; an ax within a bundle of sticks, symbolizing the plentitude of governmental power—a classical representation of Mao Tse-tung’s dictum that “[p]olitical power grows out of the barrel of a gun”. (footnote 1) The illusions of modern politicians aside, however, that historical allusion does not invest Congress (or even the General Government as a whole) with all the powers of a Roman Senate, let alone a license to arm the President with the authority of an ancient Roman dictator—or a latter day Duce. (footnote 2)

The modern doctrine of “emergency powers” is striking because—unlike the accepted authority of the Roman Senate to appoint a dictator—“emergency powers” lack both a specific source in the Constitution and a definition. If the Constitution contained a clause explicitly delegating to Congress “emergency powers”, delineating the content of such powers, and setting out specific conditions under which they could be exercised, by whom, and for what purposes, no one could complain. No such provision exists, however. Today, public officeholders simply announce that an “emergency” exists and that they are assuming “emergency powers” to deal with it—with both ostensible “emergency” and the “powers” that supposedly flow from it unilaterally defined by themselves without reference to anything in the Constitution. And necessarily so—for if some specific reference to the Constitution could be made,invocation of “emergency powers” would be supererogatory. To any legally literate individual, this situation is intolerable. (footnote 3)

  • The doctrine of ’emergency powers’ negates constitutionalism in general.

    The doctrine of “emergency powers” negates constitutionalism in general. By definition, a “constitution” is a charter of defined and therefore limited government. In contrast, the doctrine of “emergency powers” is an apology for undefined and therefore unlimited government. No so-called “constitution subject to the unilateral assertion of “emergency powers” by government officials could possibly survive. For, by hypothesis, no such “constitution” would in any significant way limit those officials, who could relax or remove restrictions on their own initiative simply by saying that some situation had arisen that licensed them to overstep its boundaries. If, all of a sudden, an “emergency”—as self-interested power-hungry politicians and special-interest groups might define it—could beget new, theretofore unheard-of powers, constitutionalism itself would disappear, ushering in a “government” limited by its own rhetoric, with political hysteria the measure of “law”. Indeed, in any country populated by minimally rational citizens such a suicidal “constitution” could never even come into existence. Only veritable political idiots would propose or write, let alone ratify, such a such a ridiculously self-contradictory, self-destructive document. (footnote 1)

    Footnotes:

    1.) Constitutional “Homeland Security”, Volume I, The Nation in Arms, by Dr. Edwin Vieira, Jr., page 11-12. Also see The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1420-1421.

  • The doctrine of “emergency powers” runs afoul of America’s Constitution in particular.

    The doctrine of “emergency powers” runs afoul of America’s Constitution in particular. Anyone who bothers to read the Constitution will see that it

    • delegates to the General Government as a whole—or to Congress, the President, or the Supreme Court separately,—no “emergency powers” under that rubric;
    • delegates neither powers that only an “emergency” can call into existence, nor powers that may be exercised only in an “emergency”;
    • delegates no power even to declare that an “emergency” exists; and perhaps most decisively of all,
    • does not even employ the word “emergency”, let alone define it as a legal principle relevant to any part of “the supreme Law of the Land”. (footnote 1)

    Thus, constitutionally speaking, “emergency” has neither place nor meaning, and therefore by itself cannot serve as the justification for or measure of any power whatsoever. (footnote 2)

    Footnotes:

    1.) U.S. Const. art. VI, cl. 2.

    2.) Constitutional “Homeland Security”, Volume I, The Nation in Arms, by Dr. Edwin Vieira, Jr., page 12.

  • The Founding Fathers did not negligently overlook the possibility of ’emergencies’ in their country’s future—but defined and accounted for them.

    The Founding Fathers did not negligently overlook the possibilities of “emergencies” in their country’s future. For example, the Constitution empowers Congress “[t]o declare War” (footnote 1)—surely an “emergency” in the commonsensical understanding of that term. Yet even the “existence of a state of war could not suspend or change the operation upon the power of Congress of the guarantees and limitations of the Fifth and Sixth Amendments”, (footnote 2) or any other Amendment or constitutional limitation, for that matter.

    In addition, the Constitution recognizes certain other extraordinary, and possibly “emergency” situations as predicate or conditions precedent for the exercise of specific powers specifically granted. For instance “[t]the Privilege of the writ of habeus corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it”. (footnote 3) Congress may “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions”. (footnote 4) And the Fifth Amendment commands that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”. (footnote 5) But, in each of these cases, the Constitution explicitly defines the “emergency” that justifies the employment of an expressly delegated power, leaving nothing for political interpolation. (footnote 6)

    Footnotes:

    1.) U.S. Const. art. I, § 8, cl. 11.

    2.) United States v. L. Cohen Grocery Company, 255 U.S. 81, 88 (1921).

    3.) U.S. Const. art. I, § 9, cl. 2 (emphasis supplied).

    4.) U.S. Const. art. I, § 8, cl. 15 (emphasis supplied).

    5.) U.S. Const. amend. V (emphasis supplied).

    6.) Constitutional “Homeland Security”, Volume I, The Nation in Arms, by Dr. Edwin Vieira, Jr., page 13.

  • Even the Supreme Court has recognized that ’emergency’ can serve as the source or measure of no power whatsoever.

    Even the Supreme Court has recognized, as a fundamental constitutional principle, that

    “[e]mergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the Federal Government and its limitations of the power of the States were determined in the light of emergency and they are not altered by emergency.” (footnote 1)

    The existence of some situation that self-serving public officials label an “emergency” has no constitutional effect in and of itself. Neither a “grave national crisis” nor any other “[e]xtraordinary conditions” can,

    “create or enlarge constitutional power. The Constitution established a national government with powers deemed to be adequate, * * * but these powers * * * are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary.” (footnote 2)

    Footnotes:

    1.) Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 425 (1934).

    2.) A.L.A. Schechter Poultry Corporation v. United States, 295 U.S. 495, 528-529 (1935) (footnote omitted).

  • Every constitutionally defined ’emergency power’ presupposes and is consistent only with the existence of ‘well regulated Militia’ composed of people who exercise ‘the right * * * to keep and bear Arms’

    Every constitutionally defined ’emergency power’ presupposes and is consistent only with the existence of “well regulated Militia” composed of people who exercise “the right * * * to keep and bear Arms”

    • Congress obviously could not “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” (footnote 1) unless the Militia existed.

    • The “Cases of Rebellion or Invasion” which would justify suspension of “[t]he Privilege of the Writ of Habeas Corpus” would constitute two of the reasons for which the Militia could be “call[ed] forth”. (footnote 2)

    • If a State were “actually invaded, or in such imminent Danger as will not admit of delay”, (footnote 3) she would likely have to depend upon her Militia to repel the attack initially, because there would be no time to raise regular “Troops, or Ships of War” (footnote 4) of her own, or to await the arrival of contingents from the Armed Forces of the United States.

    • A “Soldier * * * quartered in any house * * * in time of war” (footnote 5) could be a member of the Militia “call[ed] forth” (footnote 6) to “repel [an] Invasion[ ]”. (footnote 7) And,

    • “[T]he Militia” would be expected to be “in actual service in time of War or public danger”. (footnote 8)

    So much for the contention that “emergency powers” constitute a set of “exceptions” to the command that “the right of the people to keep and bear Arms, shall not be infringed”. (footnote 9)

    Footnotes:

    1.) U.S. Const. art. I, § 8, cl. 15 (emphasis supplied).

    2.) U.S. Const. art. I, § 9, cl. 2 (emphasis supplied).

    3.) U.S. Const. art. I, § 10, cl. 3 (emphasis supplied).

    4.) Id.

    5.) U.S. Const. amend. III (emphasis supplied).

    6.) Id. at 1.

    7.) Id. at 1.

    8.) U.S. Const. amend. V (emphasis supplied).

    9.) The Sword and Sovereignty: The Constitutional Principles of “the Militia of the several States”, Front Royal, Virginia CD ROM Edition 2012, by Dr. Edwin Vieira, Jr., page 1423.

The Constitution itself exposes the claim that an “emergency” with no specific constitutional definition can create new powers, also with no specific constitutional definitions, as nothing but a trick political con men employ to confuse and stampede Americans into acquiescing in legislative or executive action that they would otherwise recognize and condemn as dangerous hogwash. It is double-talk for the purpose of double-dealing. Legitimate governmental powers have nothing to do with it. If such powers actually existed, their proponents would not have to append the desperate adjective “emergency”. (footnote 4)

Constitutionally speaking, “emergency” has neither place nor meaning, and therefore by itself cannot serve as the justification for or measure of any power whatsoever.

In short, Congress, the President, and the Supreme Court—and the States, subject in addition to their own constitutions—have no more authority to expand their powers (or evade their disabilities) simply by declaring an “emergency” than by screaming “shazaam”.

Footnotes:

1.) Quotations From Chairman Mao Tse-tung (Peking, China: Foreign Languages Press, First Edition, 1966), at 61.

2.) Constitutional “Homeland Security”, Volume I, The Nation in Arms, by Dr. Edwin Vieira, Jr., page 11.

3.) Id.

4.) Id., page 14.