Some Emergency Powers Need Congress’s OK

Some Emergency Powers Need Congress’s OK


by George W. Liebmann


Regarding the suggestion by David B. Rivkin ‘Jr. and Charles Stimson in “A Constitutional Guide to Emergency Powers” (op-ed, March 20) that • “widespread noncompliance with federal quarantines and travel bans promulgated under the Public Health Service Act may qualify as an insurrection.” Authorizing use of the military to enforce federal laws despite
the Posse Comitatus Act is an imposition on the Journal’s réaders.

The writers, former Republican administration officials, must know-that a “stealth” provision of the National Defense Authorization Act of 2007 conferred such authority on the president in cases of “natural disaster, epidemic, or other serious public health emergency” It was repealed, after a letter of protest signed by all 50 governors, by the National Defense Authorization Act of 2008.

Citizens would do well to remember Friedrich Hayek”s warnings
against the abuse of emergency .powers and the words of Justice Robert
H. Jackson: “men have discovered no technique for long preserving free government except that the Executivebe under the law, and that the law be made by parliamentary deliberations.” And: “emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive that authorizes them.”

The avoidance of military law enforcement is a central principle of the Declaration of Independence, Constitution, and Bill of Rights. The governors and Congress will authorize its use when truly necessary. The president alone may not.

Wall Street Journal, A18, March 31, 2020

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