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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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