NYU School of Law
Standard accounts of emergency powers in constitutional law tend to emphasize the problem of ‘powers’ vs. ‘constraints’. Emergencies require broad, discretionary and flexible decision making powers; the problem is how to authorize such powers while constraining them at the same time. As Clinton Rossiter famously stated in analyzing the failure of Article 48 of the Weimer Constitution: in this case ‘[o]ne of the two great problems of constitutional government, that of power, had thus been solved. The problem of limitations remained.’ (p 64)
But this type of analysis, although still controlling over most theoretical debates about the legitimacy of emergency government, is very limited and quite unhelpful. It tends to perpetuate a very static notion of the relations between “powers” and “constraints” and to disregard the complexity of institutional structures in which constitutional norms operate in crisis. Most of all, this type of analysis expects that emergencies will be managed in an “exceptional” environment in which response powers tend to centralize in one all-powerful agent of response: namely, the executive, or in Carl Schmitt’s enduring terminology, “the sovereign”. This is described as almost a natural phenomenon, and sometimes as part of the very definition of emergency in public law: an occasion that calls for strong executive response.
However this is a distorting and even dangerous depiction. In reality, emergency response activities – including identifying and declaring a particular event as an emergency, deciding what to do in response, and declaring its termination – are never carried out by one all-powerful agent. In fact, in the complex constitutional context of the administrative state, when a threatening and unexpected event occurs, power shifts to different and often unexpected centers of response.
Take the recent Manchester Arena bombing as an example.
From a quick study of media accounts of the attack and its aftermath one can easily get a sense of the variety and scope of actors – local, national and international – involved in emergency response activities. Who were the responders to the terrorist attack? Which institutions were involved in identifying the event for what it was, assessing and declaring the relevant level of threat, deciding what to do about it, and making sure that lessons are learned in preparation for future events? Arguably, and quite naturally, the most important actors in this story – those whose decisions were life-saving, those whose impact on the development of the crisis was immediate and critical (and arguably, long lasting) – were local organizations and private responders. These were security personnel, event organizers and private first responders at the venue, local ambulances and emergency health providers dispatched, local hospitals, local police forces, local and national media, the city council and its leaders, the city’s religious associations and religious community leaders and more generally local citizens who engaged in crisis response activities and in acts of solidarity with the victims from the very first moment after the attack.
These local responders had nothing to do with the “executive” or “the sovereign”, yet their choices and decisions in real time were critical. They have managed not only to save lives and maintain order, but also to contain what could have easily developed from a terrorist crisis into a social and political crisis in a city as diverse and multiethnic as Manchester. They have also managed to create a resonating legacy of emergency response that is characterized by an ethos of unity rather than division, and led by citizens, local officials and neighbors rather than only by central government officials and outside forces. Those saving lives and those assessing and declaring for the whole world what type of emergency we are encountering, and how it should be responded to, were not the British Government but first and foremost a range of regular local and dispersed actors.
Soon enough, however, this local list was supplemented by international actors of different types: European leaders and other world leaders, diplomatic agents, security agents of foreign governments, foreign media, Libyan militia and so on. Of course, more traditional actors were involved as well – the Prime Minister’s office, the Home Office, the national police force, the armed forces, intelligence agencies, the prison system, but also Parliament, the Queen, the court system and even the transportation department. A complex and expansive web of responders influenced the way the emergency developed and was solved.
Further study would reveal, of course, that this is only the tip of the iceberg. Each of the institutional responders, particularly the more traditional actors in the executive – the Prime Minister, the Home Office, the police and the armed forces – are in themselves made out of a complex web of responders, including advisors, lawyers, security experts, bureaucrats of different levels and different types and so on. The image of the unilateral executive, all powerful and unrestrained in emergency is dissolved into thin air. Handling an emergency such as the Manchester attack is not, and cannot be in any way, a centralized business. It is a joint and large-scale project in which the idea of “unconstrained” “unlimited” powers is unthinkable.
It is about time that the theory of emergency powers catch up to the pluralistic constitutional environment of emergency response. If the question is, as Carl Schmitt famously stated, “Who decides that there is an emergency and what should be done to handle it” the answer must be mundane and pluralistic rather than exceptional and autarchic. All the constitutional issues that the terrorist event raised: the scope of information sharing with foreign countries and the scope of government control over sensitive information, the presence of armed forces in British public space, the scope of free speech, the aptness of the Prime Minister’s announcement of critical threat level in the context of ensuing elections, the just treatment of ethnic minorities – were possible only within a wide institutional scope of emergency response.
Finally – one crucial constitutional context in which the Manchester attack took place, that of Brexit – was hidden in the shadows of the event’s dramatic first days but is likely to become apparent in the next months as negotiations commence. Just as the enactment of the Human Rights Act (1998) in the context of the UK’s move towards European integration deeply implicated British responses to the 9/11 and the 7/7 terrorist attacks, the withdrawal of the UK from the European Union, and particularly the triggering of Article 50(2) of the Treaty of the European Union, will surely have far reaching implications on the scope of the British government’s capacity to respond to terrorist related threats. The worry is not that the EU and the UK will stop sharing information or that the Brexit context will affect their joint security interests especially on terrorist issues. Instead, the worry is that if a Brexit deal is not reached such cooperation will become unstable and might deteriorate because of other areas of disagreement. A new security agreement will not just naturally “emerge”. If things fall apart in the negotiations, then legally, on 29 March 2019, the EU and Britain will not be sharing information or cooperating on security issues anymore.
The Manchester attack and its complicated constitutional environment is of course just an illustration of a broader problem in the theory of emergency powers in public law. The example challenges the traditional assumption that emergencies require concentration of powers in the executive. We should move beyond this assumption and ask how to enable the wide variety of responders who actually engage with emergencies on different levels and at different times, to develop and improve their response capabilities. Emergency response is a complex enterprise that requires highly cooperative constitutional environments. If constitutional scholars have a role in these environments it is not only to confront executive excess, it is also to expose the connection between constitutional norms and the institutional structures in which real time emergencies actually take place.
By Karin Loevy, manager of the JSD Program at NYU School of Law and a scholar at the Institute for International Law and Justice (IILJ). Her book, Emergencies in Public Law: The Legal Politics of Containment, was published by Cambridge University Press in 2016. An overview of her new project on history of international law in the Middle East (1915-1922), was recently published in the Israel Law Review and won the journal’s prize for best unsolicited article for 2016.