Yale Law Journal
Two broad categories of constitutional models have traditionally been invoked in the context of fashioning legal responses to emergencies. According to the Business as Usual model, ordinary legal rules continue to be strictly followed with no substantive change even in times of crisis. The law in times of war remains the same as in times of peace. Other models of emergency powers may be grouped together under the general category of models of accommodation, insofar as they attempt to accommodate, within the existing normative structure, security considerations and needs. Though the ordinary system is kept intact as much as possible, some exceptional adjustments are introduced to accommodate for exigency. The article suggests that these traditional models may not always be adequate. Rather, there may be circumstances when the appropriate method of tackling grave threats entails going outside the legal order, at times even violating otherwise accepted constitutional principles. Such a response, if pursued in appropriate circumstances and properly applied, may strengthen rather than weaken, and result in more rather than less, long-term constitutional fidelity and commitment to the rule of law. The Extra-Legal Measures model proposed in the Article informs public officials that they may act extralegally when they believe that such action is necessary for protecting the nation and the public in the face of calamity, provided that they openly and publicly acknowledge the nature of their actions. It is then up to the people to decide, either directly or indirectly (e.g., through their elected representatives in the legislature), how to respond to such actions. The people may decide to hold the actor to the wrongfulness of her actions, demonstrating commitment to the violated principles and values. The acting official may be called to answer, and make legal and political reparations, for her actions. Alternatively, the people may act to approve, post facto, the extralegal actions of the public official. The process leading up to the ratification (or rejection) of those actions promotes deliberation after the fact, as well as establishes the individual responsibility of each member of the relevant community for the actions taken on behalf of the public during the emergency. That very process, with its uncertain outcomes, also serves an important function of slowing down any possible rush to use extralegal powers by governmental agents. By separating the issues of action and ratification, the model adds an element of uncertainty hanging over the head of the public official who needs to decide how to act. That uncertainty raises the cost of taking an extralegal course of action. The model seeks to preserve the long-term relevance of, and obedience to, legal principles, rules, and norms. While going outside the legal order may be a little wrong, it is advocated in order to facilitate the attainment of a great right, namely the preservation not only of the constitutional order, but also of its most fundamental principles and tenets. The model promotes, and is promoted by, ethics of political and popular responsibility, political morality, and candor.
Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 Yale L.J. 1011 (2003), available at https://scholarship.law.umn.edu/faculty_articles/895.