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63 Duke L.J. Online 1 (2013-2014)

handle is hein.journals/duljo63 and id is 1 raw text is: Duke LawJournal Online VOLUME 63 DECEMBER 2013 EMERGENCY POWER AND TWO-TIERED LEGALITY CURTIS A. BRADLEYT Commentators have long debated how to think about the relationship between law and presidential power during emergencies. Three distinct positions have emerged in that debate. First is the strict approach: that the president is subject to the normal constitutional and statutory laws even during emergencies. Second is the accommodation approach: that constitutional and statutory law should be interpreted to allow for more expansive presidential power during time of emergency. Third is the extralegal approach: that exercises of emergency authority should be understood as operating outside the law, potentially with some sort of after-the-fact evaluation of whether the exercise was functionally or morally justified.' Each of these approaches has potential drawbacks. The strict approach's denial that the interpretation of constitutional and statutory authority changes during times of emergency seems naive and threatens to make the law either too restrictive or too disconnected from actual practice. The accommodation approach, by Copyright @ 2013 Curtis A. Bradley. f William Van Alstyne Professor, Duke University School of Law. For helpful comments and suggestions, I thank Kathryn Bradley, Jack Goldsmith, and Eric Posner. I have had the pleasure of knowing Dick Fallon since I was a student in his constitutional theory seminar in 1986, and I would like to take this opportunity to thank him for being such a wonderful teacher, mentor, and model of scholarly integrity and excellence. 1. For discussions of these three perspectives, using somewhat varying labels, see generally Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?, 112 YALE L.J. 1011 (2003); Jules Lobel, Emergency Power and the Decline of Liberalism, 98 YALE L.J. 1385 (1989); and Mark Tushnet, Emergencies and the Idea of Constitutionalism, in THE CONSTITUTION IN WARTIME: BEYOND ALARMISM AND COMPLACENCY 39 (Mark Tushnet ed., 2005).

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