LENS Essay Series: “Curtailing the Executive Emergency Powers: Congress’s Job, the Judiciary’s Headache”

Today Duke Law 3L Anighya Crocker takes on a very  timely topic: the scope of the President’s emergency powers and the role Congress can–and should–have in scoping these authorities while not hampering the Executive’s need to take quick action when necessary. Anighya makes a very convincing argument that it is best if the legislative branch, not the courts, addresses the necessary reforms.

Anighya’s article. “Curtailing the Executive Emergency Powers: Congress’s Job, the Judiciary’s Headache” is the latest installment of the LENS Essay Series which features top young scholars writing about aspects of national security.

Here’s the abstract of the article:

Abstract:

This paper examines the expansive nature of the Executive’s emergency powers and argues that Congress should act to reform these powers. The Covid-19 pandemic brought scholarly attention to this issue, but certain academics have advocated for the Judiciary to intervene in reforming Executive powers. Specifically, certain academics have asserted that the Federal Judiciary should abandon its practice of deference to the Political Branches during times of National emergency.

This paper rejects this assertion and argues instead that Congress should reclaim its previously delegated powers from the Executive. Abandoning judicial deference only further upsets the Federal balance. Part I of this paper traces the historical development of the Executive’s emergency powers, from the early days of the Republic, through the Civil War, and into the New Deal.

Throughout this era, Congress pawned away many of its emergency powers, placing them within the grasp of the Executive. Simultaneously, the Judiciary developed and maintained its practice of emergency deference.

Part II discusses the modern justifications for judicial deference and criticizes the current push for abandoning deference. Part III briefly outlines steps for Congressional intervention, suggesting reforms to the National Emergencies Act and other relevant laws. Reforms like those listed below do not disrupt the Federal balance but instead reclaim powers that Congress has previously delegated to the Executive.

Altogether, this work stresses the importance of Congressional action in addressing the unchecked growth of the Executive’s emergency powers. Lasting reforms must come from Congress and not the Judiciary.

Again, you can find Anighya’s superb essay here.

About the Author:

Anighya H.D. Crocker (J.D. 2024) is a third-year student at Duke University School of Law. Originally from Springfield, Tennessee, Anighya graduated from Vanderbilt University with a B.M. in vocal performance and a second major in history. During his 1L and 2L summers, Anighya worked in Nashville, Tennessee, at Bass, Berry, & Sims PLC. Also, during his 2L summer, Anighya served as a judicial intern for the Honorable Justice Sarah K. Campell of the Tennessee Supreme Court.

At Duke, Anighya serves as a Lead Editor for the Alaska Law Review and is an active member of the Federalist Society. Upon graduating from Duke, Anighya will clerk for the Honorable Judge James C. Dever III of the Eastern District of North Carolina and the Honorable Justice Sarah K. Campbell of the Tennessee Supreme Court before returning to Bass, Berry, & Sims.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!