Letter from Mark Tushnet, William Nelson
Cromwell Professor of Law, Harvard Law School
I am William Nelson Cromwell Professor of Law,
Harvard Law School, and write in response to the call for evidence
on emergency legislation. I have written several articles on the
"political constitution" of emergency powers in both
parliamentary and separation of powers systems,[91]
and am submitting this evidence solely on my own behalf. I confine
my comments to only some of the questions posed by the Committee.
1. Is it possible to provide a practical
definition of "emergency legislation?" In general, I
believe that the answer is, No, for two related reasons. (a) It
is in the nature of emergencies that they are unanticipated. One
might identify the generic characteristics of particular forms
of emergency in advance of the event,[92] but
their specific manifestations will almost never fit ex ante
definitions precisely. (b) As a result, any ex ante definition
of emergency legislation is likely to lead to unproductive controversies
over whether the situation at hand is an emergency as defined
or, in contrast, whether the situation falls outside the ex
ante definition. To succeed, a statutory definition ex
ante would have to be exclusive, in the sense that the government
could not proceed on an expedited basis unless the statutory definition
of "emergency" was met. Then, however, two possibilities
arise. (i) The government might contend, and its opponents might
dispute, that the circumstances fit the statutory definition.
Such arguments will almost certainly be unproductive and will
divert attention from what should be at the heart of the discussion
- whether legislation is urgently required. (ii) The government
might concede that the circumstances do not fit the statutory
definition but insist that expedited consideration is needed because
the circumstances, though unanticipated by the statute's drafters,
require immediate action. If that position is defensible - and
it may well be, or at least the government's supporters will so
regard it - either the statute defining emergencies will be honored,
thereby obstructing the expedited consideration of legislation
the government believes to be urgently needed, or it will be disregarded,
thereby bringing the statutory definition into disrepute.
Put another way, ex ante definitions are
likely not to be "practical."
2. The best alternative, in my judgment,
is to allow the government to seek expedited consideration of
legislation without restriction as to the circumstances under
which it can do to, but to require special procedures when the
government so chooses. Designing such procedures is outside my
area of expertise, but the basic features would include transparency,
a timetable that though short is not unreasonably so given the
nature of the proposed legislation (and in particular given the
extent to which reasonable questions could be raised about the
legislation's compatibility with fundamental rights), and almost
certainly some provision for subsequent parliamentary review and
mandatory consideration of revisions on a slower timetable.
30 April 2009
91 The Political Constitution of Emergency Powers:
Some Conceptual Issues, in Emergencies and the Limits of Legality
(Victor V. Ramraj ed. 2008); The Political Constitution of Emergency
Powers: Some Lessons from Hamdan, 91 Minnesota Law
Review 1451 (2007); The Political Constitution of Emergency
Powers: Parliamentary and Separation-of-Powers Regulation, 3 International
Journal of Law in Context 275 (2008). Back
92
Categories such as "economic," "natural disasters,"
"public health emergencies whatever the cause," and
"terrorist threats" have been used in legislation elsewhere. Back
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