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By express and implied reservation, the Constitution permits states to wage defensive war and take other military action in response to invasion, insurrection, and transnational criminal gangs. This article examines the under-researched area of state war powers and how they interact with federal military and other foreign affairs powers. It also recovers the meaning of the Constitution's term "invasion" and demonstrates that several judicial decisions have construed that term far too narrowly. The article ends with reflections on justiciability and remedies in state war power cases. [ABSTRACT FROM AUTHOR]

The article discusses the concerning trend of successive presidential administrations extending claims of using force abroad without congressional authorization, undermining the original understanding of the Executive's role in making war. It emphasizes the importance of Congress as a deliberative body to act as a gatekeeper for any use of force and the need to uphold structural constraints on constitutional powers, especially concerning war powers.

Does the fact that Article I, Section 8 of the United States Constitution reserves to Congress the authority to "declare war" mean that the president needs congressional approval before using military force?1 As this Article discusses, there are a range of answers to this question. The Article examines this debate in the context of humanitarian intervention, i.e. military actions taken, not for purposes of conquest, but instead to stop largescale, serious violations of human rights. If the president wishes to use the military for these purposes, should he have more authority under the Constitution to do so? Less? The same? What this Article suggests is that the concerns which drove the Founders to place limits on the President's war powers, especially the fear that a glory-seeking chief executive would precipitously use the military in order to serve his own desire for fame, are not as serious when it comes to humanitarian intervention. Presidents are unlikely to significantly enhance their short-term popularity or historical legacies by using the military in this way. As a result, there is less reason to fear that they will be incautious in these situations. In addition, it is possible to establish standards by which to judge presidential action in this arena, placing another effective limit on the President. In light of the reduced risks, as well as the terrible costs of inaction in the face of grave human rights crises, we should accept some flexibility for the President to decide to intercede for humanitarian reasons. [ABSTRACT FROM AUTHOR]

This article provides a genealogy of the governance of critical infrastructure in Canada. We focus in particular on a largely unknown and unexamined civil defense initiative introduced during World War II that sought to count, categorize and, under declaration of a national emergency, directly protect what were then known as ‘vital points’ from sabotage. Our analysis recounts major episodes and turning points in the deployment of this organizational apparatus by the various institutions responsible for civil defence and emergency management in which it was embedded. In the latter sections of this article we show how the problem of critical infrastructure was decoupled from the exercise of exceptional emergency power and reconstituted in the form of what we refer to as ‘coordinated preparedness’, through which the governance of critical infrastructure is accomplished in ways that are compatible with the constitutionalization of Canada’s emergency power. We conclude by considering what the governance of critical infrastructure in Canada reveals for critical understandings of emergencies and emergency power. [ABSTRACT FROM AUTHOR]

The article proposes a model constitutional amendment for the war powers in the U.S. Topics discussed include claims that the U.S. continues to be in a state of perpetual warfare since September 11, 2001, a background that explains how the U.S. declares war, and the current problematic state of using military force.

The article focuses on the effects of Zivotofsky v. Kerry court case on executive national security and war powers in the U.S. Topics discussed include overview of separation of powers jurisprudence and constitutional law; Zivotofsky court case addressing executive branch action; and sovereignty policy of the country.

The article discusses the roles of statism and slavery in the Constitution adopted by the Confederate States of America (CSA) in relation to its impact on the Confederacy's legal system. Topics include the relation of the Confederate Constitution to the U.S. Constitution, the federalist nature of the CSA's Constitution in relation to states' rights, and the relation of the CSA's Constitution to the war powers of the CSA.

The article discusses that the author refers to as an American president's use of a statutory stretch form of constitutional interpretation in order to defend a U.S. president's use of authority or executive initiative, and it mentions the rule of law in the U.S., presidential lawyering in America, and the views of U.S. President Barack Obama. The U.S. Congress and judicial review are assessed, along with an American president's national security and war powers.

On his first day in office, President Obama called for the closure of the military prison at Guant'anamo Bay, Cuba. Near the end of Obama's tenure, the prison remains open. This Note suggests a previously undiscussed path for the President to transfer most detainees from Guant'anamo, despite congressional opposition, using a robust and exclusive executive tool: the pardon power. By granting conditional pardons to eligible Guant'anamo detainees, the President could unilaterally move many to the mainland United States for continued, if limited, detention, and transfer others for repatriation elsewhere. In addressing the Guant'anamo problem, this Note argues that pardons have been used and should be viewed as a crucial complement to presidential war powers. The Note concludes that granting clemency for Guant'anamo detainees is not only legally defensible, but also consistent with constitutional structure, original understanding, and historical practice since the Founding. [ABSTRACT FROM AUTHOR]

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allow the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be distinct legal issues. This Article, by contrast, considers these two bodies of law together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels between the structure of the international and domestic legal regimes governing the use of force, and it explains how this structure tends to incentivize unilateral action. Second, it theorizes that these two bodies of law are interconnected in previously overlooked ways, such that how the executive branch interprets law in one context can be and often is informed by the other legal context. Third, it documents these interactions over time for several important components of the law on the use of force and shows that this dynamic has played a significant role in justifying the practice-based expansion of unilateral war powers. The Article concludes by arguing that both scholars and policymakers seeking to shape the law on the use of force need to take better account of this interactive dynamic. [ABSTRACT FROM AUTHOR]

This Article presents a theory of authorizations for the use of military force (AUMFs) that reconciles separation of power failures in the current interpretive model. Existing doctrine applies the same text-driven models of statutory interpretation to AUMFs that are utilized with all other legal instruments. However, the conditions at birth, objectives, and expected impacts underlying military force authorizations differ dramatically from typical legislation. AUMFs are focused but temporary corrective interventions intended to change the underlying facts that prompted their passage. This Article examines historical practice and utilizes institutionalist principles to develop a theory of AUMF decay that eschews text in favor of time. Consistent with armed conflict, functional needs, and constitutional norms, AUMF decay offers a model that harnesses the institutional advantages and interplay embedded in separation of powers regime. Properly, AUMF interpretation recognizes their peculiar role and lifespan as one that explodes into the legal landscape with supernova intensity and potency that, regardless of text, is just as surely followed by an accelerating decay that ultimately diminishes to complete inoperability. [ABSTRACT FROM AUTHOR]

Legal mechanisms governing the state of emergency can play an important role in authoritarian rule and post-revolutionary transition periods. Egypt has experienced the terror of a regime empowered by emergency law. In Tunisia, emergency law was not so much an issue before but rather after the Jasmine revolution. Given the importance of emergency regulations in both cases, this article provides brief process-oriented accounts of the constitutional reforms triggered by the Arab Spring. It furthermore takes a critical look at how Egypt and Tunisia have redesigned these norms in the latest constitutions of early 2014. On the basis of criteria regarding the rule of law and mechanisms of crisis governance in modern democracies, this article then analyses and evaluates the key elements regarding checks and balances pertaining to emergency regulations in the 2014 constitutions. [ABSTRACT FROM AUTHOR]

This article focuses on the relationship between governmental emergency power (ie, the power to derogate from the laws in emergencies) and constitutional change. It seeks to explain how, in the past, uses of emergency power contributed to constitutional transformations. Three historical examples are analysed and compared: the fall of the Roman Republic in the first century BC, the emergence of a more centralized government towards the end of the Middle Ages and the decline of the Weimar Republic in the 1920-30s. The comparison shows that these constitutional transformations can be explained by the normalization of emergency powers, ie, their use as regular means of governance. Moreover, the notion of public trust appears to have played a key role in these constitutional transformations, either by constraining emergency powers in the absence of other legal restrictions or by legitimizing extra-legal uses of these powers that undermined existing constitutions. [ABSTRACT FROM AUTHOR]

An essay is presented on U.S. President Barack Obama's power as the nation's Commander in Chief to use drone aircraft and other technological methods to target and kill specific individuals that he in good faith determines to be active enemy combatants engaged in lawful or unlawful hostilities against America. The author states that Obama has the legal authority to employ the nation's war power against U.S. citizens who are enemy combatants. U.S. constitutional law is also examined.

The article discusses the powers that the U.S. President possesses as the nation's Commander-in-Chief, focusing on war power and the reasons why America's President can use the United Nations Security Council (UNSC) as the constitutional basis for military operations that are "short of war." The U.S. Constitution, UNSC authorization for operations in Somalia and Bosnia, and various American Presidents such as Barack Obama, Harry S. Truman, and Franklin D. Roosevelt are mentioned.

Existing war powers scholarship focuses overwhelmingly on the President's power to initiate military operations abroad and the extent to which that power is constrained by Congress. It ignores the allocation of legal power to threaten military force or war, even though threats-to coerce or deter enemies and to reassure allies-are one of the most important ways in which the United States government wields its military might. This paper fills that scholarly void, and draws on recent political science and historical scholarship to construct a richer and more accurate account of the modern presidency's powers to shape American security policy. The swelling scope of the President's practice in wielding threatened force largely tracks the standard historical narrative of war powers shifting from Congress to the President. Indeed, adding threats of force to that story might suggest that this shift in powers of war and peace has been even more dramatic than usually supposed. This Article shows, however, that congressional influence operates more robustly-and in different ways-than usually supposed in legal debates about war powers to shape strategic decision-making. In turn, these mechanisms of congressional influence can enhance the potency of threatened force. By refocusing the debate on threatened force and its credibility requirements, this Article also calls into question many orthodoxies of the policy advantages and risks attendant to various allocations of legal war powers. Instead of proposing a policy-optimal solution, the Article concludes that the allocation of constitutional war powers is-and should be-geopolitically and strategically contingent. The actual and effective balance between presidential and congressional powers over war and peace in practice necessarily depends on shifting assumptions and policy choices about how best to secure U.S. interests against potential threats. [ABSTRACT FROM AUTHOR]

An extraordinary body of scholarship suggests that wars, especially major wars, stimulate presidential power. And central to this argument is a conviction that judges predictably uphold elements of presidents’ policy agendas in war that would not withstand judicial scrutiny in peace. Few scholars, however, have actually subjected this claim to quantitative investigation. This article does so. Examining the universe of Supreme Court cases to which the US Government, a cabinet member, or a president was a named party over a 75-year period, and estimating a series of fixed effects and matching models, we find that during war Justices were 15 percentage points more likely to side with the government on the statutory cases that most directly implicated the president. We also document sizable effects associated with both the transitions from peace to war and from war to peace. On constitutional cases, however, null effects are consistently observed. These various estimates are robust to a wide variety of model specifications and do not appear to derive from the deep selection biases that pervade empirical studies of the courts. (JEL K0, K3, Z0). [ABSTRACT FROM PUBLISHER]

This paper identifies two distinctive features of ancient constitutional design that have largely disappeared from the modern world: constitution-making by single individuals and constitution-making by foreigners. We consider the virtues and vices of these features, and argue that under plausible conditions single founders and outsider founders offer advantages over constitution-making by representative bodies of citizens, even in the modern world. We also discuss the implications of adding single founders and outsider founders to the constitutional toolkit by describing how constitutional legitimacy would work, and how constitutional interpretation would be conducted, under constitutions that display either or both of the distinctive features of ancient constitutional design. [ABSTRACT FROM AUTHOR]

Barack Obama campaigned for the presidency in part on a platform of promising to reverse the constitutional excesses of the second Bush presidency. Yet critics of the former law school professor -- from both left and right -- have been quick to accuse Obama of abandoning that promise by accepting, embracing, and even advancing expansive executive power claims. This article will examine these criticisms by comparing the two presidents' constitutional power claims and actions in the areas of war powers, signing statements, and the veto power. [ABSTRACT FROM AUTHOR]

American liberals and conservatives agree about very little concerning foreign policy, war, and emergency powers, but they do agree that the Constitution's ambiguous allocation of foreign policy powers to the legislative, executive, and judicial branches is a problem that must be fixed. For conservatives, the answer has been a reliance on constitutional reinterpretation that might establish a bright line between executive power in foreign policy and war (which they embrace) and national authority to regulate domestic and economic affairs (which they do not). For liberals, who worry that constitutional ambiguity opens the door for the abuse of executive power, the solution has been to trade formal delegation of power constrained by strict statutory limits on the exercise of that power. These efforts-liberal and conservative alike-have failed, each producing results quite the opposite of what was sought. After setting these debates in their legal, historical, and political context, this review concludes with a reexamination of the potential virtues of constitutional ambiguity. [ABSTRACT FROM AUTHOR]

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In his articles, books, and legal memoranda for the U.S. Department of Justice, John Yoo is well known for favoring broad and even exclusive presidential power in the field of national security. Less understood is his dependence on the British model and the prerogatives it extended to the king over external affairs. In his writings, Yoo devotes little attention to the framers' rejection of British executive prerogatives. Even less does he acknowledge their commitment to a republic, a form of government in which sovereign power is vested not in an executive but in the people. [ABSTRACT FROM AUTHOR]

The article focuses on the perception by philosopher John Locke that constitutional arrangements have been developed by modern states for protection from threats to their continued existence. Locke has observed tension between a commitment to the rule of law and the prospect that exceptional cases can force the executive to deviate from the law. A certain ambiguity regarding the legality of emergency powers is testified by the theory of Locke.

In 1973, a supermajority of Congress overcame President Nixon's veto to enact the War Powers Resolution. That law was intended to restore the Founders' vision of cooperative war-making authority between the two political branches. Since that time, two areas of uncertainty have plagued the efficacy of the law: the arguable intrusion into the exclusive war-making authority of the President and the uncertainty as to what events trigger the law's obligations. In an effort to cure these defects, a group of experts recently proposed adoption of a substitute law: the War Powers Consultation Act of 2009. This proposed successor statute shifts the focus of statutorily mandated inter-branch war powers cooperation from the express authorization emphasis of the War Powers Resolution to notification and cooperation. While this shift in emphasis is both logical and more aligned with historical constitutional practice than the War Powers Resolution, the proposal still straggles to define an effective trigger for this notification and cooperation mandate. This Article will review how the War Powers Consultation Act seeks to cure the defects of the War Powers Resolution and to impose a more effective cooperative war-making relationship between the two political branches. It will then propose a critical improvement: a more effective notification and cooperation trigger to implement the statute's purpose, one that is derived from the nature of the military operations this cooperative decision-making mandate is intended to enhance. The Article will explain how linking the congressional notification mandate of the proposed law to operational rules of engagement will provide the most effective pragmatic notification trigger, mitigate the risk of interpretive avoidance of the law's mandate, and reconcile the scope of the cooperative war-making obligation with constitutional authority. [ABSTRACT FROM AUTHOR]

The article focuses on the war powers conferred by the U.S. Constitution to the Congress and the Executive, and discusses the constitutionality of the President's initiation of the U.S.-Iraq conflict in 2003. It offers information on the news coverage leading up to the passing of the congressional resolution authorizing the President to invade Iraq. It discusses the need for Senators to perform their jobs without political self-interest to avoid future foreign policy disasters.

This article probes the relationship among constitutionalism, extra-legal prerogative power, and citizen judgment. While much has been written about the nature of Lockean prerogative, and while his theory serves as a direct inspiration for contemporary "normative extra-legalists," key participants in the debate over emergency powers, less attention has been paid to how the people judge prerogative. Attention to this issue is useful because an examination of the process of political judgment of extra-legalism in Locke leads to a complication of the current extra-legalist vision of democratic mechanisms of accountability. The author argues that the extra-legal approach is right to consider the role of democratic publics in potentially constraining the exercise of emergency powers but wrong to formulate that role as one extra-constitutional power checking another extra-constitutional power. The author situates both prerogative power and citizen judgment of it at the threshold of the constitutional order. [ABSTRACT FROM AUTHOR]

We usually think of Human Rights as having two main characteristics. The first is their universal aspect, which basically refers to their source of validity and to the range of their possessors. The second is their political aspect, which refers to their respondent: the states' governments. In this paper I argue that the opposition between the two creates an immanent dichotomy that enables the violation of Human Rights by their addressee. I show one effect of this dichotomy through inquiring the issue of human rights during national emergencies. I argue that in such situations, where human rights are most fragile and vulnerable, and desperately needed, governments use their power (with the permission of both human rights theorists and even human rights conventions and covenants) and violate them, at least temporarily. I criticize this permission and claim that human rights should be respected even during national emergencies. [ABSTRACT FROM AUTHOR]

The article discusses the Green paper "The Governance of Britain," published by the administration of British Prime Minister Gordon Brown in July 2007. The Green Paper outlined the views of the government on war powers. It also unveiled the plan of the government to urge the House of Commons to develop a parliamentary convention. The article highlighted the issues of constitutional propriety and Royal Prerogative in relation to the legal form of war powers.

Over the past half-century, discussions of constitutional war powers have focused on the scope of the President's ‘inherent’ power as Commander in Chief to act in the absence of congressional authorization. In this Article, Professors Barron and Lederman argue that attention should now shift to the fundamental question of whether and when the President may exercise Article II war powers in contravention of congressional limitations, when the President's authority as Commander in Chief is at its ‘lowest ebb.’ Contrary to the traditional assumption that Congress has ceded the field to the President when it comes to war, the Commander in Chief often operates in a legal environment instinct with legislatively imposed limitations. In the present context, the Bush Administration has been faced with a number of statutes that clearly conflict with its preferred means of prosecuting military conflicts. The Administration's response, based on an assertion of preclusive executive war powers, has been to claim the constitutional authority to disregard many of these congressional commands. This Article is the first of a two-part effort to determine how the constitutional argument concerning such preclusive executive war powers is best conceived. Professors Barron and Lederman demonstrate that, notwithstanding recent attempts to yoke the defense of executive defiance in wartime to original understandings, there is surprisingly little historical evidence supporting the notion that the conduct of military campaigns is beyond legislative control. Thus stripped of its assumed roots in a supposedly longstanding tradition, and considered in light of the long pattern of executive acceptance of constraining statutes, the Administration's recent assertion of preclusive war powers is revealed as a radical attempt to remake the constitutional law of war powers. This Article begins by explaining why the debate about the ‘lowest ebb’ is now emerging as the primary constitutional war powers question, and by addressing the methodological missteps that have typically infected this debate. It then explores recent attempts to identify the preclusive prerogatives of the Commander in Chief and explains why the tests often deployed to cabin the scope of the presumed preclusive power are flawed. Finally, it reviews the relevant Supreme Court precedent, along with the constitutional text, the historical context in which the text was written, and the original understandings, and sets the stage for the post-Founding historical review contained in the next Article. [ABSTRACT FROM AUTHOR]

The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This Article analyzes why the Commander in Chief Clause is difficult and argues that international law helps resolve some of the problems that the Clause presents. Because of weaknesses in originalist analysis, changes over time, and lack of judicial competence in military matters, the Court and commentators have relied on second-order interpretive norms like congressional authorization and executive branch practice in interpreting the war and foreign affairs powers of the President. International law can itself function as a second-order interpretive norm, in many ways similar to other forms of congressional authorization or executive branch practice. But because it is mediated in unique ways--by other countries and within our own domestic political system--international law is an especially compelling way to resolve problems with judicial competence and changes over time. International law also makes a powerful contribution to an originalist understanding of the Commander in Chief Clause: the Constitution explicitly vested control over war-related questions of international law with Congress, not the President. [ABSTRACT FROM AUTHOR]

To what extent are political leaders entitled to violate embedded moral and legal rules in response to national emergencies? Do they have a duty to do so? This article assesses two prominent liberal approaches to this question. The ‘dirty hands’ thesis insists that there is a radical separation between private and public ethics and that the latter may require the commission of acts prohibited by the former. A ‘lesser evil’ approach holds that leaders may even violate the more permissive public ethics if there is a consequentialist case for doing so. Both suggest to some extent that certain acts remain wrong but may be necessary nonetheless. While this position makes good philosophical sense, it makes little political sense. In practice, societies choose either to validate or reject the legitimacy of certain acts. This article aims to overcome this problem by suggesting a new way of thinking about the way that ‘dirty hands’ and ‘lesser evil’ ethics work in practice through Ian Clark's work on legitimacy. It argues that in particular cases actors evaluate between competing political, ethical and legal claims, a point illustrated by a brief case study on the torture debate. [ABSTRACT FROM AUTHOR]

The article discusses the constitutionality of warrantless wiretapping surveillance by the National Security Agency on U.S. citizens. The wiretapping program existed weeks after the September 11, 2001 attacks, on the justification that Congress authorized the president to warrantless wiretap U.S. citizens, and that the president had inherent authority as commander-in-chief. But it is argued that Congress did not expressly authorize the president to do wireless wiretapping and neither has he such inherent authority.

The article focuses on issues concerning the proper role of the U.S. Executive and Congress in the war powers area. The limits of traditional methodologies are discussed. Patterns followed for the proper evaluation of the constitutional jurisprudence of a judge are presented. The question of whether congressional authorization must be explicit and addressed to a particular controversy is analyzed.

The article reports on the revival of scholarly interests in the perennial question of how emergency power can be made to conform to the rule of law. With only slight delay, academic pronouncements followed government action, generating a host of impressive discussions of the dilemmas posed by extraordinary executive power. The crisis brought about terrorism and the fragile state of peace and order have generally augmented executive power and diminished basic civil liberties.

The article examines the role of executive power in the U.S. policy towards international terrorism. The Congress passed an Authorization for the Use of Military Force that authorized the president to deter and prevent acts of international terrorism against the U.S. Detainees from the U.S. Naval Station in Guantanamo Bay, Cuba are tried under military commissions, which operate under authority of the executive branch with limited judicial oversight, have the power to impose punishments of life imprisonment or death upon the detainees. However, there have been many criticisms with regards to the treatment of the prisoners and that the executive power has overridden various legislation and limits of executive power under the Geneva Convention Relative to the Treatment of Prisoners of War. The author discusses the expansion of the limits of executive power as exemplified in the "Youngstown Sheet & Tube Co. v. Sawyer" Supreme Court ruling. Justice Robert Jackson's opinion laid out an analysis of executive power in comparison to exercises of congressional power.

From the Vietnam War to the present, there has been a growing impression that federal courts lack both the jurisdiction and the competence to decide war power disputes. Such a cramped view finds no support in the first century and a half, when courts regularly accepted and decided such cases. It was only with Vietnam that courts began to avoid the merits of war power cases by invoking a variety of threshold tests. Following 9/11, the broad and expansive justifications of unilateral presidential powers by the Bush administration forced federal courts to revisit and reassert their constitutional responsibilities. [ABSTRACT FROM AUTHOR]

This paper examines whether constitutional interpretations of the proper roles of the executive and the legislative branches influence Congress members' voting decisions on use of force votes. Specifically, the authors examine the hypothesis that some members are presidentialists--those whose constitutional interpretations favor the executive--and others are congressionalists--those whose constitutional interpretations defend congressional prerogatives. We examined members of Congress who served continuously in either the US House of Representatives or the US Senate from 1990-1999. We identified possible congressionalists and presidentialists using all roll call votes of resolutions to authorize the use of force, and examined floor speeches in the Congressional Record to see how these members explained their votes. We conclude some members of Congress do take constitutional interpretations into account when casting these votes, and justify their actions based upon their reading of the Constitution. Thus, they shape congressional debate and voting outcomes. [ABSTRACT FROM AUTHOR]

The article focuses on the principles of international law and the interface between emergency powers and international law. It discusses the constraints imposed by the international law on emergency powers, and the relationship between national and international control mechanisms. It offers information on the International Covenant on Civil and Political Rights (ICCPR) which has been ratified by several states from all continents. It focuses on the difference between limitations and derogations in the universal and regional human rights treaties. It discusses the derogation provisions of the ICCPR which recognizes that there can be emergency situations in which derogation from ICCPR rights can be justified, as well as the applicability of the ICCPR in armed conflicts.

The article focuses on the social and political implications of the use of emergency powers and the Prevention of Terrorism Act (PTA) to combat the terrorist activities in Sri Lanka. It presents an overview of the regulations declared under the state of emergency, and discusses the political history behind emergency regulations as well the process of enacting emergency regulations. It mentions that Sri Lanka's government has a presidential-parliamentary system, and the president may proclaim a state of emergency under the Public Security Ordinance of 1947 (PSO) and issue emergency regulations. It discusses the powers of search, arrest and detention conferred on the national security forces under the Emergency Miscellaneous Provisions and Powers Regulations (EMPPR).

The article focuses on the U.S. constitutional system with respect to the emergency powers to address circumstances in the exceptional times of crisis such as wars. It discusses several emergency issues in the history of the U.S. that required to accommodate liberal values in extreme political contexts. It also discusses the views of executive unilateralists and civil libertarian idealists regarding the ways to address the emergency issues by the constitutional regime. It focuses on the role of American courts in addressing the emergency issues in the past, and discusses two Civil War-era habeas corpus decisions, Ex parte Milligan and Ex parte McCardle, wherein the Supreme Court examined the power of the executive to order military forces to maintain public order against civilians.

This power to act according to discretion for the publick good, without the prescription of the Law and sometimes even against it, is that which is called Prerogative.1 For prerogative consisting (as Mr. Locke has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent, if that discretionary power be abused to the public detriment, such prerogative is exerted in an unconstitutional manner.2 [ABSTRACT FROM PUBLISHER]