Emergencies and the Constitution: Retroactive ratification

The Supreme Court’s rejection in the Steel Seizure Case of President Harry Truman’s assertion of an inherent executive power to seize the steel mills to thwart a nationwide strike generated questions about the location in the Constitution of authority to confront emergencies.

The framers of the Constitution were entitled to believe that they had succeeded in subordinating the executive to the Constitution. Indeed, that was one of their greatest accomplishments. Still, there remained the problem of emergency and it confronted the principle of the rule of the law with an awkward though undeniable challenge, immortalized in the words of President Abraham Lincoln.

Lincoln wrestled with the question in the clamor and conflict of the Civil War. “Are all the laws but one,” he asked, in addressing Congress on July 4, 1861, “to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?”

Does the president truly possess an inherent power, variously referred to as a prerogative or emergency power, which the English philosopher John Locke famously described in 1690, as the “power to act according to discretion for the public good, without the prescription of law, and sometimes even against it?” If so, what are its limits, if any? Does the existence of an emergency reallocate constitutional powers? As a corollary, may the president ignore or revise the Constitution? For example, if a president believed he should stay in office for six years, in defiance of the constitutionally limited four-year term, to serve the public interest may he remain in office?

Delegates to the Constitutional Convention did not entertain a doctrine of necessity or a theory of emergency power. There is no evidence that they intended to incorporate a Lockean Prerogative in the Constitution. And there is no textual grant of such a power. Indeed, fears of executive power led the framers to enumerate the president’s power. The framers undertook, in James Madison’s phrase, “to confine and define” presidential authority. Clearly, an undefined reservoir of inherent or emergency power would have unraveled the carefully crafted design of Article II and repudiated both their stated aim of corralling executive power and the principle of the rule of law.

Rather than granting to the president an emergency power, the framers embraced the age-old doctrine of retroactive authorization. Lord Dicey, the eminent commentator, explained the method that emerged in English law: “There are times of tumult and invasion when for the sake of legality itself the rules must be broken. The ministry must break the law and trust for protection to an act of immunity.”

The adoption of this approach in America meant that the president, perceiving a grave emergency, might act in the absence of law, or in violation of it, and turn to Congress to provide immunity for his illegal action by retroactively authorizing it.

In this manner, congressional ratification would hinge on the question of whether Congress shared the president’s perception of an emergency. Congress might or might not share the president’s view. The chief virtue of this practice was that it left to Congress, as the nation’s lawmaking authority, the ultimate determination of the existence of an emergency, and it prevented the president from serving as judge of his own cause, a principle of over-arching importance in the history of Anglo-American legal history. An additional virtue lay in the fact that the requirement of congressional ratification would likely temper presidential claims of emergency.

Since resort to Congress for vindication and exoneration represents an admission of executive usurpation of power, a president is unlikely to respond to an emergency with measures that exceed his authority and risk his own fate and fortune, unless he is confident that the legislature would likewise view his acts as an indispensable necessity. The doctrine of retroactive ratification incorporates elements of both the doctrines of separation of powers and checks and balances and thus maintains a semblance of constitutional government.

The American practice of relying on retroactive authorization, rather than bowing to the assertion of emergency executive power, dates to the revolutionary period. It has been advanced by great presidents, including Thomas Jefferson and Abraham Lincoln. We turn next week to their resort to retroactive authorization, and other historic examples, to demonstrate our constitutional means of confronting emergencies.