Yale Law School
Emergencies are presumed to be unusual affairs, but the United States has been in one state of emergency or another for the last forty years. That is a problem. The erosion of democratic norms has led to not simply the collapse of the traditional conceptual boundary between ordinary rule and emergency governance, but also the emergence of an even graver problem: the manufactured crisis. In an age characterized by extreme partisanship, institutional gridlock, and technological manipulation of information, it has become exceedingly easy and far more tempting for a President to invoke extraordinary power by ginning up exigencies. To reduce this threat to political order, we must re-calibrate judicial incentives to reward good-faith invocations of limited emergency power, while punishing efforts to solve ordinary public-policy disputes by fabricating or grossly exaggerating problems. This Essay is a start: it recommends the situational loss of deference whenever there is reason to believe public officials are lying about an emergency or have grossly exaggerated the nature, severity, or duration of a real problem. It also urges minimum review of emergency-salient facts for sufficiency. These moves are more important, not less, in situations where the government invokes national security. And while it would entail a change in current practice, it would actually represent a return to an older effort on the part of judges to insist upon truth and empiricism. The approach would be helpful in such matters as legal challenges to Trump’s executive order imposing a “Muslim ban,” and unilateral efforts to build a physical border wall and rewrite immigration policy.
Robert L. Tsai,
Yale Law Journal Forum
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1097