"The Legal Regulation of Emergency Powers" by William E. Scheuerman
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Publication Date

2006

Abstract

The starting point for Professor Levinson's thought-provoking ruminations on emergency power and constitutionalism is his deep skepticism about the Bush Administration's legal response to 9/11.1 In the context of the "war on terror," Professor Levinson accurately recounts, the Administration has claimed the right to override both longstanding domestic and international legal commitments.2 Even strict prohibitions on torture, it seems, are not exempt from the President's constitutionally based prerogative as "Commander in Chief to keep the nation out of harm's way, and only he apparently possesses the rightful authority to determine the fate of accused terrorists. Although many constitutional lawyers will instinctively dismiss Professor Levinson's comparisons of the Administration's legal positions to those of the infamous Nazi jurist Carl Schmitt, recent Administration memorandums support this interpretation. Those memorandums clarify that the Bush Administration is not simply seeking a less demanding or different legal standard for the treatment of accused terrorists than what the Geneva Conventions require for regular combatants, but that the Administration construes its power to deal with accused terrorists in accordance with the model of a legal black hole in which unmitigated discretionary power holds sway. In the spirit of Carl Schmitt, executive emergency power is conceived as a fundamentally normless realm in which the President exercises pure discretion to ward off life-threatening existential threats to the political community.

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