A comparison of emergency powers

oatsandsugar —  June 17, 2012 — Leave a comment

This essay was written as a take-home exam for States of Emergency, Emergency Powers and Liberal Democracy at Copenhagen University, under Professor Ebrahim Afsah, which received a perfect score (12/12).  The essay was in response to the following question:

Contrast the emergency provisions in the German, Japanese, and United States constitutional order. How would you classify their respective approaches, what would you consider to be the main functional and normative needs answered by the particular instruments, and how would you assess their relative strengths and weaknesses? 

German, Japanese and United States emergency provisions

In response to exceptional circumstances, there are, at the most basic level, two different types of response: reacting outside of the usual legal system or acting within the existing legal system – using Ramraj’s terminology, an “accommodative” or “business as usual” (“BAU” approach).[1]  This essay will attempt to classify the German, Japanese and US approaches through the aforementioned frame, hypothesise on the normative and functional needs which these systems service and compare the strengths and weaknesses of each system both theoretically and within its own context.

World War I Army Biplane

Different emergencies require different responses within different contexts

Germany

A classic model of constitutional accommodation of emergency powers

The German system of emergency powers would be classified as an accommodative constitutional model.  It consists of four emergency states: the Verteidigungsfall[2], Spannungsfall[3], internal emergencies[4] and legislative emergencies.[5]  Each of these emergencies was associated with different powers.  This system, further, allows for the combatting of opponents to the liberal democratic order through the idea of “Wehrhafte Demokratie[6]

To understand the normative role played by the emergency provisions in the German Basic Law, an analysis must include a reflection on the history that shaped it.  Following a crushing defeat in the First World War, the Weimar Constitution[7] was enacted in 1919, with strong emergency provisions in obvious response to the security threats of the time.  Notably, the Weimar Constitution provided sweeping powers to the Reich President in an emergency, coupled with an extremely broad definition of an emergency sufficient to trigger such powers.[8]  This provision was abused by the Weimar republic, and eventually allowed republic to become an authoritarian regime.[9]  It is the spectre of such an abuse and domestic and international pressure following defeat in the Second World War that the current constitution was written.[10]  The Basic Law’s reflection on horrors of the Second World War are apparent, with the first thing mentioned being an affirmation of human dignity,[11] and the first Part creating rights inviolable even when an emergency has been declared.[12]  In 1968, amongst a backdrop of growing student unrest, the Bundestag amended the constitution and created a system for emergency powers.[13]  However, this system had learned from the flaws of the Weimar emergency provisions, there were sufficient checks and balances so that it could not, easily, be abused.  Thus, there are two central normative roles played by the German Basic Law.  Firstly, the strong constitutional rights that are non-derogable even in times of emergency serve to reassure the German people, and the international community, that the horrors of the Second World War could not be repeated.  Secondly, the allowance for emergency powers, even powers as controlled and pre-planned as those in the Basic Law, increase Germany’s sovereignty that was denied to the nation in its inception.[14]

The specific powers, and checks on such powers can also be seen as having a functional role in protecting the German constitutional order.  Much like the ancient roman dictatorship model,[15] there were checks on the timeframe allowable for an emergency,[16] limits to the laws that could be made during an emergency (the Basic Law could not be changed or abrogated)[17] and the usual constitutional order must remain intact.[18]  These checks serve the functional role of restricting the possibility of abuse of the emergency system.  Further, during a state of defence, if the legislature is unable to meet, they are replaced by a “Joint Committee” – a group of ministers chosen ahead of time – to take on the duties of the Bundestag and Bundesrat.  Here, there is a functional threat: the inability to pass law because the legislature cannot assemble, and this is solved with a system more liberal than the Roman model: instead of the executive taking over, a smaller legislature takes on the role.  Finally, the German system does allow for the use of the military and the border police internally during internal emergencies,[19] serving the obvious functional role of a physical response to a threat.   Thus, we can see that the German system has an ex ante approach to functional challenges: predicting and defining the scope of such challenges and responding with appropriately limited emergency measures.

The strength of such an ex ante approach would be threefold.  Firstly, the emergency requirements may be discussed ahead of time, during peace: thus, they can be discussed in full, and prove to be more comprehensive and well debated than ex post approaches.  Secondly, the explicit and controlled nature of the emergency provisions lends legitimacy to the constitution, and to the provisions.  Finally, the multi-level system employed by Germany seeks to balance rights with emergency provisions, allows the populace the final say (it allows the right to resist unconstitutional practices) and minimises the extraordinary powers allowed to the different governmental organs.  The weakness of the German approach comes through its rigidity: whilst it has served well so far, there may be a situation which was unaccounted for in the drafting process whereby the current system would limit the government’s ability to respond legally.

Japan and the United States

Two different approaches to the “BAU” emergency response

Both the Japanese and the United States Constitutional systems can roughly be classified as BAU approaches – neither has an explicit system of constitutional emergency powers.  However, both of these systems have found their own way of dealing with emergencies.  The Japanese system uses administrative guidance – “extra legal” orders given to large players in the economy.  The US system uses a mix of constitutional interpretation, legislative and administrative action to allow greater flexibility during an emergency.

The BAU system satisfies an important normative goal: it expresses a commitment to legality and to the rule of law where emergency provisions could potentially jeopardise them.  The Japanese constitution was written by the US after the Second World War, limiting Japan’s sovereignty by disallowing the creation of a military and by not providing for emergency powers.  Unlike Germany, however, Japan made a normative decision not to try and increase sovereignty, but to wholeheartedly adopt the western constitutional system imposed on it.[20]  Thus, the decision not to amend the constitution to allow for such powers serves to underline this commitment.  The US constitution was created at a time of emergency – thus, the ordinary system foreseen in the constitution is deemed to allow for appropriate responses to extraordinary threats within the constitutional system.  However, some flexibility is afforded through the “War Powers” afforded to the executive.[21]  The US commitment to reacting to emergencies within the law is highlighted by the case law on the matter, with the judiciary disallowing the exercise of power outside the areas usually afforded to each organ of government.[22]  This commitment to the constitutional limitation on government power reflects a normative commitment to rights and liberties.  Thus, the Japanese and US system of emergency powers highlight the importance of the rule of law within both countries.

Whilst the Japan and the US do not have constitutional systems for managing emergencies, they are both still subject to extraordinary circumstances.

In Japan, responding to the “oil shock” of the early 1970’s, the government had no constitutionally sound instrument to guarantee oil prices to maintain economic stability.  Thus, the Ministry of Trade and Industry, on behalf of the government, instructed the major oil companies in Japan to ignore the relevant competition law and fix prices at an acceptable rate.[23]  The companies were protected from litigation as long as they disobeyed the competition policy under the advice of the ministry, and without looking to personal profit – the illegality of their action was precluded by the instruction.[24]  Thus, the instructions take on an extra-constitutional quasi-legal role.  This instruction takes the functional role of responding to the crisis despite the normative choice of Japan to be bound strictly by its constitution’s limitations.

In the US, unlike Japan, the executive did attempt to access the limited doctrine of “war powers” in response to the economic crisis of the Great Depression, by analogising the crisis to a war. The Supreme Court stated that the organs of government, even in a time of war, could not exceed their constitutional powers, although the powers could be construed more broadly then in usual circumstances.[25]  Thus, the first of the US’s deviations from a strict BAU approach is revealed: whilst the US’s normative commitment to constitutional integrity forbid exceptional powers, they do allow increased depth of power within existing categories as a functional response to emergencies.  The second deviation is through legislation: there are currently more than 250 emergency laws enacted by different legislative bodies in the US.[26] Finally, administrative and procedural changes, alongside changing common-law requirements regarding criminal offences relating to Terrorism, highlight the third, informal and extra-constitutional response in the US to an emergency.  These three techniques highlight a functional need for exceptional powers in extraordinary circumstances.

The functional need for responses to extraordinary circumstances is met within the Japanese and US iterations of the BAU system – accommodation outside of the text of the constitution.

The Japanese and US systems show their normative commitment to the supremacy and universality of their constitutions.

The Japanese system, further, works extremely well within the cultural and socioeconomic frame of Japan.  Where administrative guidance can work in Japan, where the legal system and its participants look to the purpose, rather than the strict wording of government enactments, it would not work in the US or Germany, where strict formalism is the legal norm.[27]  In the Japanese context, the administrative guidance system allows a low-friction, responsive government power to respond to emergencies.  However, its weakness comes from its ad hoc nature, which reduced the legitimacy of the use of exceptional power.

The strength of the US system comes from the strength of its judiciary.  Whilst vague extraordinary powers would lead to an imbalance of power in many countries, the US judiciary is strong enough to enforce its limitations.  Although there were a few Presidents who believed that their power extended further than they did (e.g. Nixon’s famous statement from his interview by Frost: “Well, when the president does it, that means that it is not illegal”), the judiciary has been quick to limit the actual use of such powers.  Further, the flexibility has allowed a functional response to some threats, although the administrative and procedural approach applied in response to terrorism may have done more harm than good.  This highlights, in effect, the limitations of the US system: the vagueness of the boundaries of legality in states of exception allow for misuse and misunderstanding of the scope of the government.

Conclusion

The German system of emergency provisions is a strictly constitutional system of accomodation.  The Japanese and US systems are different varieties of extra-constitutionally flexible BAU systems.  Whilst the German system might provide more functional certainty, and the Japanese and the US systems might provide more normative currency, each system responds well to its own environment.  The German Basic Law was written under intense international pressure, but grew, with the nation, into a system which allows for emergencies, but in a strictly legalistic way.  The Japanese constitution was imposed on it, and has been largely unmodified, however, the method of its application is uniquely Japanese, with “guidance” being issued formally, and, usually, being followed in a manner that benefits the nation.  The US constitution was created in a time of conflict, and incorporates many powers which would allow a constitutional response to emergencies.  Where the US has been faced by an emegencies, it has responded by an organ of government taking leadership and responding to the situation: usually the executive as checked by the judiciary, but, with the modern threat of terrorism, the response has been within the executive, legislature and judiciary.  It is impossible to assess the strength of these systems outside of their national and historic contexts, but it seems that each system is uniquely adapted, and quite effective, within its own context.

After the jump: Footnotes and Bibliography 


[1] Ebrahim Afsah, ‘Revision Lecture’ (3 May 2012).

[2] GG  Art. 115A.

[3] GG  Art. 80A.

[4] GG  Art. 91.

[5] GG Art.  81. Russell Miller, 247.

[6] GG  Arts 9, 18, 20 and 33.

[7] Die Verfassung des Deutschen Reichs [The Constitution of the German Reich].

[8] Ibid.,  Art. 48.

[9] Ebrahim Afsah, ‘Constitutional Accommodation in Germany’ (March 2012).

[10] András Jacab, 465.

[11] “Die Wurde des Menschen ist unantastbar” GG  Art. 1, s 1.

[12] Ibid.,  Part 1.

[13] Russell Miller, pp 245

[14] Although, arguably, Germany only became fully sovereign in 1990.

[15] Oren Gross and Fionnuala Ní Aoláin, ‘Models of accommodation’, 17.

[16] GG  Art. 81(3), Art. 115K.

[17] Ibid.,  Art. 81(4).

[18] Ibid.,  Art. 115H.

[19] Ibid.,  Art. 87A, Art. 115F.

[20] Mark Fenwick, 315.

[21] Michal R. Belknap, 83.

[22] ibid; Robert Chesney and Jack Goldsmith, 1079; Wilson v. New, 243 US 332 (1917).

[23] Mark Fenwick, 319.

[24] Ibid.

[25] Michal R. Belknap, 67; Wilson v. New, 243 US 332 (1917).

[26] Ebrahim Afsah, ‘Revision Lecture’ (3 May 2012).

[27] Ebrahim Afsah, ‘Revision Lecture’ (3 May 2012).

Bibliography

Articles, Books

  • Belknap, Michal R., ‘Historical Observation: New Deal and the Emergency Powers Doctrine ‘ (1983) 62(1) Texas Law Review 67
  • Chen, Albert H. Y., ‘Emergency Powers, Constitutionalism and Legal Transplants: The East Asian Experience’ in Victor Vridar Ramraj and Arun K. Thiruvengadam (ed), Emergency Powers in Asia. Exploring the Limits of Legality (Cambridge University Press, 2010) 21
  • Chesney, Robert and Jack Goldsmith, ‘Terrorism and the Convergence of Criminal and Military Detention Models’ (2008) 60(4) Stanford Law Review1079
  • deLisle, Jacques, ‘States of Exception in an Exceptional State: Emergency Powers Law in China’ in Victor Vridar Ramraj and Arun K. Thiruvengadam (ed), Emergency Powers in Asia. Exploring the Limits of Legality (Cambridge University Press, 2010) 342
  • Dyzenhaus, David, The Constitution of Law: Legality in a Time of Emergency(Cambridge University Press, 2006)
  • Fenwick, Mark, ‘Emergency powers and the limits of constitutionalism in Japan’ in Victor V. Ramraj and Arun K. Thiruvengadam (eds), Emergency Powers in Asia (Cambridge University Press, 2010) 314
  • Article15 of the European Convention on Human Rights’ (2011) 12(10)German Law Journal 1764
  • Gross, Oren and F. Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press, 2006)
  • Gross, Oren and Fionnuala Ní Aoláin, ‘Models of accommodation’, Emergency Powers in Theory and Practice (Cambridge University Press, 2012) 17
  • Jacab, András, ‘German Constitutional Law and Doctrine on State of Emergency – Paradigms and Dilemmas of a Traditional (Continental) Discourse’ (2005) 7(5) German Law Journal 453
  • Li, Eric X., ‘Why China’s Political Model Is Superior’, New York Times (New York), 18  February 2012
  • Miller, Russell, ’40/68 – Germany’s 1968 and the Law’ (2009) 10(3) German Law Journal 223
  • Ramraj, Victor Vridar, ‘No Doctrine more Pernicious? Emergencies and the Limits of Legality’ in Victor Vridar Ramraj (ed), Emergencies and the Limits of Legality (Cambridge University Press, 2008)
  • Ramraj, Victor Vridar, ‘The Emergency Power Paradox’ in Victor Vridar Ramraj and Arun K. Thiruvengadam (ed), Emergency Powers in Asia. Exploring the Limits of Legality (Cambridge University Press, 2010)
Cases
  • Wilson v. New, 243 US 332 (1917)
Treaties, Legislation, Constitutions
  • Die Verfassung des Deutschen Reichs [The Constitution of the German Reich]
  • Grundgesetz für die Bundesrepublik Deutschland [Basic Law of the Federal Republic of Germany]
  • United States Constitution
  • Affsah, Ebrahim, ‘Revision Lecture’ (Speech delivered at the States of Emergency, Emergency Powers and Liberal Democracy, Copenhagen University, 3 May 2012)
Lectures
  • Afsah, Ebrahim, ‘Functional Logic of Accommodation: Emergency Law in Non-liberal Polities’ (Speech delivered at the States of Emergency, Emergency Powers and Liberal Democracy, University of Copenhagen, Class 3, Week 8, 23 April 2012)
  • Afsah, Ebrahim, ‘Economic Emergencies’ (Speech delivered at the States of Emergency, Emergency Powers and Liberal Democracy, University of Copenhagen, Class 11, Week 17, 26 April 2012)
  • Afsah, Ebrahim, ‘Constitutional Accommodation in Germany’ (Speech delivered at the States of Emergency, Emergency Powers and Liberal Democracy, Copenhagen University, Class 5, Week 10, 8 March 2012)
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oatsandsugar

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LLM candidate at Cornell Tech. Consultant for King & Wood Mallesons and Project Evangelist for Legalese.

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