America's Emergency-Powers Consensus: ‘We the People’ and Their Written Guarantee of Safety

Students of the exercise of emergency powers in the American governmental system have taken note in recent years of an obviously widening gap between what presidents assert they can do in emergencies and what congressional and court critics of presidents, and many serious scholars, say are the constitutional and statutory limits on executive emergency powers. The perceived widening gap is something new, though Americans seem to have accustomed themselves to it quickly enough. In the shadow of what has come to be called the era of the imperial Presidency, some say that one extreme tendency demands a compensating counterbalancing tendency toward the opposite extreme. Indeed, it is now widely believed that what had been an acceleratingquantitativeincrease in presidential power has largely resulted in aqualitativetransformation that threatens the continuance of “free government,” requiring intensified criticism of presidential practice as well as, perhaps, a temporary exercise of emergency powers by other branches of our government to restore the traditional balance of separated powers.