Within the perspective of Hamilton‘s admonition against limiting executive authority, this Article endeavors to generally discuss the historical and recent separation of powers issues arising with an active executive branch. Part II gives a brief overview of executive powers and their limitations: first discussing what actions are strictly executive in character, and then presenting Congress‘ attempts to question the executive‘s emergency powers and addressing the Judicial branch‘s struggle with finding a balance between judicial oversight and political question doctrine. Part III reviews specifically enumerated powers of the executive in emergencies where executive action is justified by the constitution, such as the evolution of emergency executive powers during wartime, force majeure, and, later on, public health emergencies. Posse commitatus, martial law, and immediate response principles are also discussed at length in this vein. In Part IV, the public health emergency section delves into the powers available to the executive, whether it be the President under his federal constitutional authority or the Governor under his State police powers—regardless of executive authority, how far may the executive go without overstepping the bonds of liberty. Ultimately, this Article posits that the broad grant of executive authority in exigent circumstances is warranted.
Joshua L. Friedman,
Emergency Powers of the Executive: The President’s Authority When All Hell Breaks Loose,
25 J.L. & Health
available at https://engagedscholarship.csuohio.edu/jlh/vol25/iss2/4