Posted by Orin Kerr:
Vermeule on Emergency Lawmaking:
http://volokh.com/archives/archive_2007_10_14-2007_10_20.shtml#1192550784
Adrian Vermeule has posted a very interesting essay on SSRN:
[1]Emergency Lawmaking After 9/11 and 7/7. The argument:
This essay offers case studies of three emergency statutes, all
dealing with terrorism and all enacted within less than a year
after a major terrorist attack: the September 14, 2001
Authorization to Use Military Force; the USA PATRIOT Act; and the
U.K. Terrorism Act 2006. A standard worry about such cases is that
the circumstances of emergency lawmaking produce blank-check
delegations to the executive. The fog of uncertainty, emotions such
as urgency and visceral fear, and the tendency of legislators and
the public to rally 'round the flag, all cause legislators to vote
the executive massive new powers, regardless of whether those
powers are rationally justifiable. This view is descriptively and
theoretically flawed. Descriptively, executives in all three
episodes lost control of the political dynamics, faced bipartisan
resistance or rebellion in the legislature, and ended up obtaining
far less than they asked for or desired. Theoretically, emergency
conditions have cross-cutting political effects on legislators. The
mechanisms and forces operative during emergency lawmaking cut both
ways, constraining as well as empowering the executive, with
unpredictable net results in particular cases. Although executives
usually receive new powers in emergencies, there is no reason to
think that they systematically tend to receive more new authority
than a rational legislature would provide.
I think that's plausible, and seems correct to me in the case of the
Patriot Act in particular.
There's also a second-order dynamic here: Emergency legislation
creates fear of overreaching that often leads to later legislation
tempering the more controversial aspects of the emergency legislation.
For example, the Patriot Act renewal legislation in 2006 added privacy
protections to counter fears of certain provisions of the Patriot Act.
And right now, Congress is considering legislation adding protections
to counter fears of certain provisions enacted by the Protect America
Act of 2007 (the FISA legislation pass a few months ago).
Thanks to [2]Larry Solum for the link.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1019542
2. http://lsolum.typepad.com/legaltheory/
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
