Emergency Powers

Two principles that could be extracted from constitutional doctrine are:  (1) there are no general emergency powers granted by the Constitution; and (2) there is no provision for sunsetting the exercise of constitutional powers.  Both of these hypotheses were falsified by today’s opinion in Shelby County.

Perhaps the best article about the Warren Court was written two years ago by Burt Neuborne.  He argued that we should the view the Court of that era as acting in an emergency capacity to root out racism from public life.  That evil justified the Court’s sweeping decisions across a number of areas–voting rights, criminal procedure, congressional power, and so on.  As that evil has faded, though, the Court has, in effect, declared the emergency over and regressed to the norm.  A sunsetting of the original decisions, if you will.

That idea is evident in Chief Justice Roberts’ opinion.  He repeatedly explains that the pre-clearance procedure in the Voting Rights Act was an unusual step taken to meet a desperate situation.  Now that circumstances are “normal,” though, the same exercise of power is not justified.  You could either look at that as a sunset of the enforcement power used in 1965 or a declaration that only a showing equivalent to 1965 can justify the exercise of that power today.  (Congress will probably not redo the coverage formula, though, so the latter point is basically just academic.)

The doctrinal hook for this plasticity is “rationality,” which is being defined here much like it is in the “rational basis plus” equal protection cases.  (The Court did not adopt Boerne’s “congruence and proportionality” standard for the Fifteenth Amendment.)  Then there is the unwritten constitutional principle of “equal state sovereignty,” which I am sure will be back to chew on more federal statutes in the future.

Finally, the Chief Justice cleverly bootstrapped his opinion in Northwest Utility to support the Court’s holding today.  You wonder if that was his plan all along.

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3 Responses

  1. Shag from Brookline says:

    I picture CJ Roberts as a home plate umpire calling Jackie Robinson out in his attempt to steal home even though the evidence of replays show that he was safe, giving new meaning to “Roberts’ Rules.”

  2. Gerard Magliocca says:

    Of course, Yogi Berra still says that Robinson was out and the ump blew the call.

  3. prometheefeu says:

    Isn’t that always the case when the court applies any review which includes global facts? It seems quite logical that if the government’s actions’s constitutionality depends on facts, sometimes, a global fact pattern will change making the previously permissible, impermissible.