Judicial Review in Times During Times of Emergency Is it justified to allow legislators, the ability to enact laws without the constraint of the judiciary in times of emergency? Due to the inability of the court to act in emergency situations, Oren Gross and Mark Tushnet are opposed to the process of judicial review during times of emergency (Cole, 712). Consequently, they believe that legislators should be granted extra-constitutional powers to make decisions without the process of judicial review (712). I disagree with this position. Judicial review, even in times of emergency is essential to protecting the constitutional rights of individuals. I will first outline the main arguments asserted by Gross and Tushnet, which relate to the lack of action taken by the courts in the past (712). Following this, I will outline David Cole’s argument, which demonstrates a strong case for judicial review and the faults he finds in the …show more content…
Gross-Tushnet position (714). Lastly, I will use a hypothetical emergency situation to illustrate flaws in the Gross-Tushnet argument, as well as to affirm the necessity of judicial review. Mark Tushnet is one of the advocates for extra-constitutional powers during emergencies (713). Tushnet argues that the legislature should be given the acknowledgment of holding “extra constitutional emergency powers” (713). Tushnet affirms his point by explaining that by having “emergency powers exercised in an extra constitutional way” (713) it ensures that society recognizes these decisions are only “extra constitutional” due to the fact that it is an emergency situation (713). In other words, Tushnet argues that by allowing the legislature to make extra constitutional decisions in times of emergency, it ensures that society understands that these actions are extraordinary and justified only by the nature of the situation. This is alternative to requiring the government to justify their actions under the constitution (713). Tushnet elaborates that if the government needs to make these actions “consistent with the constitution” (713) they will eventually become normal (713). This is problematic for the public because the decisions were made during a temporary, emergency situation (713). This subsequently begins a causal slippery slope towards more unconstitutional decisions (Waluchow, Terrorism & States of Emergency). So, overall by allowing the legislature to make extra constitutional decisions during times of emergency Tushnet argues that in turn society will “avoid normalizing the exception,” (713) maintaining what he considers a key distinction between the ordinary and the exceptional. As aforementioned, Gross, like Tushnet is of the opinion that during emergency situations, legislators should have extra constitutional powers.
Gross states that it is inevitable “that executive officials in times of crisis will act extra constitutionally” (713). Since this is expected, in Gross’ opinion, it is necessary to give legislators the authority to “act extra legally when they believe that such action is necessary for protecting the nation and the public” (713). Gross argues that, as long the legislators “openly and publicly acknowledge the nature of their actions” (713) this is a benefit for society (713). Gross defends his arguments by reminding us that by requiring legislators to be transparent with their extra-constitutional actions, they subject themselves to the “judgment of the people” (714). In doing so, the legislators must fairly represent the citizens that they speak for; otherwise they run the risk of not being elected, this in turn will avoid the “abuse of executive powers”
(714). Next, is David Cole’s argument, which emphasizes the importance of the judiciary in times of emergency. Cole does this by providing an explanation, which states that it is unlikely that “the political process [would] do the job of judging that Gross and Tushnet would assign it to” (716). Obviously the major difference is that the legislators would be tasked with “judging emergency measures,” (716) rather than the judiciary. Cole argues that this is the worrisome due to the fact that during emergency situations the public is scared, they will approve any measure that the government claims will protect them (716). Obviously, any politician, who wants to be re-elected, will support these measures, despite the lasting consequences that they may have (716). Cole continues by bringing up the fact that this is why we have constitutions (716-717). As Senator John Stockton said, “Constitutions are chains with which men bind themselves to in their sane moments” (717), to prevent irrational decisions in times of emergency (717). Cole elaborates that the decisions made in emergency situations also consistently target minorities, which are evidently unconstitutional (717). In other words, Cole very successfully proves that by giving extra constitutional powers to legislators, we make it too easy to fall victim to our own over-reactions, and violate our own constitutional rights, thus making a strong case for maintaining judicial review during times of emergency (716-717). Following this, Cole also presents another strong argument against the Gross-Tushnet position. He begins by asserting the fact that the “Gross-Tushnet proposal rests on the conventional wisdom that courts cannot be trusted to perform well in times of crisis” (717). In other words, this means that their explanation is not proven to be better (717). Considering this, Cole takes this opportunity to examine why this “conventional wisdom” (717) is incorrect, through examining the three branches of government. Cole begins by noting that historically, in times of emergency, such as the September 11th terrorist attacks, members of the executive branch were unable to regulate themselves by taking an immense number of “foreign nationals unconnected to terrorism” (717) into custody, evidently abusing their power (717). Furthermore Cole examines the legislative branch. He notes that the pressure for them to “do something” (717) in emergency situations historically has resulted in them entrusting “sweeping powers to the executive branch” (717). One example of this occurs during World War II when they allocated the money, which allowed for Japanese internment (717). The last branch that Cole explores is the judiciary. He articulates that it is the only branch that has the “obligation to entertain claims of rights violations” (717). He continues by clearly illustrating that though the judiciary has obvious downfalls, they are still the best and “only forum” (718) to check the powers of legislators during times of emergency. By process of elimination, David Cole successfully provides strong evidence against the Gross-Tushnet argument, and also provides evidence for maintaining judicial review in all circumstances, including times of emergency (717-718). The Gross-Tushnet argument has some key flaws. Their argument leads one to believe that overall, since society is aware of the decisions being made, and since elected representatives are making these decisions that they will be of higher quality due to the fact that they are more accountable (716). These are dangerous misconceptions, which are evidently incorrect. As explained by Waluchow in Constitutions as Living Trees, An Idiot Defends, the fact that legislators are elected subjects them to “financial and political pressures” in an attempt to retain their seat in office (Waluchow, 574) and subsequently doesn’t necessarily result in better decisions overall (574). These evident faults can be illustrated through emergency situations such as the terrorist attacks on September 11th, which took place across the United States. As Cole states, in this circumstance, the public turned to the government for protection and in response, they exercised extra constitutional powers to defend “the nation and the public” (716). The government did this through authorizing the arrest “thousands of foreign nationals unconnected to terrorism” (717). It is obvious that arresting innocent people does not protect society, so we can agree that it is crucial that events like this be prevented. To date there have been no rulings, which give limitations, or suggestions as to how the American government are to respond in future situations, it is integral that there is a means available to do so that, there is at some point there is a violation that is specifically extreme. In in summation, by proposing the elimination of judicial review Gross and Tushnet subsequently open the door to unjustified violations of constitutional rights, without any way of reversing these actions. They do this through eliminating the judiciary, which would leave legislators unchecked and without any way of guaranteeing the validity or quality of their decisions (714). In conclusion, I have argued that legislators should in fact be subject to a process of judicial review in times of emergency. Though the points brought forth by the Gross-Tushnet argument, which include the prevention of “normalizing the exception” (713) and the notion that decisions will better represent society if they come from elected legislators, are strong ones, they do not out weigh the benefits of judicial review (714). The constitutional violations that have been caused through extra constitutional powers during emergency situations, such as the September 11th terrorist attacks show explicitly that it is necessary to maintain a way to check the powers of legislators, as the constitution is one of the publics only defenses against the abuse of government power.
(475 U.S. 469 [1986]), connects with the concept that Lynn proposes in the essay, Federalist No. 51: Is Liberty Guaranteed by Structures? Lynn suggests that the checks and balances system of the U.S. government has created a gridlock when keeping the government’s integrity (2011). Pemnaur can be used an as example to justify Lynn’s argument.
The Hollow Hope examines the following research question: when can judicial processes be used to produce social change? (Rosenberg 1). Rosenberg starts out the book by describing the two different theories of the courts. The first theory, the Dynamic Court view, views the court as being powerful, vigorous, and potent proponents of change (Rosenberg 1). The second theory, the Constrained Court view, views the court in the complete opposite way. With this view the court is seen as weak, ineffective, and powerless (Rosenberg 3). In this view there are three different constraints that restrict the courts from producing effective political and social change. These constraints include: limited nature of constitutional rights, lack of judicial independence, and the lack of tools the courts need (Rosenberg 35). Even though there are constraints on the court there are conditions where the court is able to overcome the constraints.
Federalist no. 78 is persistent in its sort of justifications of the Constitutions vagueness. The letter claims that the judiciary branch is of the least danger of t...
When the rights of the American citizen are on the line than the judiciary should utilize the powers invested in them to protect and enforce what is constitutional. However, in times of controversy, where personal preference or aspects of religious or personal nature are at hand, the judiciary should exercise their power with finesse, thereby acting out judicial restraint. An example of such is in the case of Engel v. Vitale where Mr. Justice Black delivered the opinion of the court directing the School District’s principal to read a prayer at the commencement of each school day. In cases that do not regard whether an action is constitutional or not, the judiciary should suppress their power of judicial review.
Otto von Bismarck once said, “Laws are like sausages, it is better not to see them being made.” The arduous process that a bill undergoes in order to become a law may seem grueling and pointless; however, the processes high caliber of difficulty allows for the extreme prestige and exclusivity of bills that are passed. Because the process is so exhausting, and filibusters, subsequently requiring a super-majority vote to pass a bill, have always been such a threat in Congress, historically, bills that attempt to reform sensitive issues have not fared well in the legislative branch. However, when Congress does pass controversial laws, it then also faces the task of effectively enforcing them. But, when the process is carried out to completion, laws that are enforced have significant impacts on the everyday lives of the American people—such as laws concerning abortion rights. In the United States, the government and Congress have significantly affected the rights of women with regard to abortions through laws that either restrict or guarantee their legality and availability, while the government’s capacity to do so is affected by the principle of federalism along with that of the separation of powers.
as it does supporters. But, if we do not allow the Supreme Court to translate
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety," says Benjamin Franklin in Historical Review of 1759. Others tend to say just the opposite of what Ben Franklin quoted. With that being said, a key question comes up for discussion: Does the government have the Constitutional power to suspend the Constitution during a time of crisis? Certain documents were brought up for discussion that deal with certain articles from the Constitution and some acts/laws that the Congress passed to substantiate whether the government has certain powers. By using the U.S. Constitution, the Espionage Act, the Sedition Act, an executive order from President Franklin D. Roosevelt, and two federal Supreme Court cases, it will be proven that the government DOES have certain powers during a time of crisis.
Dahl conducted his study on the decision making of the Supreme Court and whether the Court exercised its power of judicial review to counter majority will and protect minority rights or if it used the power to ratify the further preferences of the dominant “national law making majority.” From the results of Dahl’s study he builds numerous arguments throughout his article, “Decision-Making in a Democracy: the Supreme Court as a National Policy-Maker”. In what follows, I will thoroughly point out and explain each of the arguments that Dahl constructs in his article.
The old idea of the separation of branches has proven to be able to solve modern day issues. However, recent issues have also proven to disregard the system, in which selfish needs over power and manipulate its uses. One example of this would be the over-empowerment of a singular branch within the government. A recent IRS scandal brought up the question as to whether or not the Presidential (executive) branch used the IRS to intimidate the opposite party, in which skepticism arose towards the “equality” of the separated branches. Another example of questionable equality of the balance of branches would be the passing of the “Patient Protection and Affordable Care Act” (Obamacare) within 2008-10, which was a law passed without the consent of the other branches besides the executive. These are clear examples of how modern day issues can twist and ruin this ‘flawless’ system. These examples, however, show the greater need for the separation of powers in today’s government. As society has grown and evolved, the government’s people, their job being the voice of the people of the country, has turned into a way to achieve selfish wants for our representatives, creating an even more significant need for the separation of powers.
Madison touches on the importance of ‘checks and balances’ and why they play such a huge role in distributing power among the branches. Checks and balances are meant to check the levels of government and to ens...
Works Cited Hudson, William E. American Democracy in Peril: Eight Challenges to America’s Future – Fourth Edition. Washington, D.C.: CQ Press, 2004. Landy, Marc and Sidney M. Milkis. American Government: Balancing Democracy and Rights.
Light, Paul C., and Christine L. Nemacheck. "Chapter 7 Congress." Government by the People, Brief 2012 Election Edition, Books a La Carte New Mypoliscilab With Etext Access Card Package. By David B. Magleby. 2012 Election Edition ed. N.p.: Pearson College Div, 2013. N. pag. Print.
The power of the Executive branch has expanded over time to become the most authoritative division of government. In contrast to the Constitution 's fundamental designer, James Madison, who predicted the Legislative branch would dominate due to it’s power in making laws and regulating taxes/spending, the executive powers have proven to be superior and ever broadening. From the birth of the Republic, the President has sought to protect his rights and seek beyond his restriction of power. Setting the precedent as early as 1795, George Washington refused to relay documents relating to the Jay Treaty to the House of Representatives and saw his actions as a justified act of “executive prerogative.” Moreover, weaving throughout the Nineteenth century, presidents such as Andrew Jackson and Abraham Lincoln conceived and added functions, such as the extensive use of the veto and the president’s direct and active role as Commander in Chief to their executive tool-belt. The Constitution communicates very little details regarding the President’s use of the power of veto and the role as Commander in Chief, but it was these presidents which established the major authority of the executive branch in these areas.
In conclusion it seems that the traditional view of parliamentary sovereignty as purported by Dicey is no longer an immutable part of our constitution. Although it remains a key principle of our constitution, it has now been reinterpreted in light of seminal cases such as Factortame and Jackson, from a legally unchangeable, rule of our constitution, to one in which Parliament is no longer prevented from placing limits to the content and form of itself.
A key feature of the unwritten constitution is ‘the Separation of Powers’. This exercises the idea of independence within ‘different functions of government’; it is represented by the legislature, the executive and the judiciary. Separating the three prevents a dangerous occurrence where power is entirely centralized in one group. Cooperating with one...