Should necessity be a constitutional doctrine under our laws?
The doctrine of necessity is the view that, in President Lincoln’s words, “measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution through the preservation of the nation.” Letter to Albert Hodges. The doctrine has a long and rich history in our constitutional tradition. President Jefferson took the view that the literal text of the Constitution must be violated so that he might seize a “fugitive occurrence which so much advances the good of our country” by securing the purchase of Louisiana from France. See Downes v. Bidwell. Justice Holmes took the view that in matters of “the sharpest exigency … it is not lightly to be assumed that, in matters requiring national action, a power which must belong to and somewhere reside in every civilized government is not to be found” in the United States. Missouri v. Holland. And, of course, President Lincoln took the view that necessity justified issuing the Emancipation Proclamation and suspending habeas corpus without congressional authorization.
To be clear: the question is not whether the Executive should be able to take actions that violate the Constitution. No law or doctrine can hope to take from the sovereign the ultimate incident of sovereignty: the power to decide on the exception. Carl Schmitt, Political Theology. The Executive has violated the Constitution many times throughout our history and will do so again, and when it does, the judiciary may be powerless to stop it. See Ex Parte Merryman (Justice Taney, declaring President Lincoln’s unilateral suspension of habeas corpus to be unconstitutional but noting that this declaration “has been resisted by a force too strong for me to overcome”).
The question is whether the courts should condone this activity as constitutional upon the cessation of the emergency, or whether they should declare it repugnant to the rule of law.
I believe that the judiciary must categorically refuse to rationalize or validate executive usurpation. To the extent that the judiciary validates the seizure of extraordinary powers during a time of necessity, it risks creating a principle that will “lie about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of urgent need.” Korematsu (Jackson, dissenting). Once this new emergency power is impressed with a stamp of institutional legitimacy, it will tend “to expand to the limits of its logic,” id. (citing Judge Cardozo), with potentially disastrous consequences. Notably, it was the explicit grant of emergency power in the Weimar Constitution which provided a pretext for the suspension of individual rights during the rise of the Third Reich. See Youngstown (Jackson, concurring).
Where the Court has validated an action taken by the Executive during a time of exigency – or perceived exigency – the results have been disastrous. In Korematsu, the Court’s attempt to rationalize actions taken by the military and the Executive against Japanese Americans threatened to result in a “legalization of racism” and the adoption of “one of the cruelest of the rationales used by” the Axis powers “to destroy the dignity of the individual and encourage and open the door to discriminatory actions against” minority groups. (Murphy, dissenting). By contrast, where the Court has stood up for the rule of law – e.g. Ex parte Milligan, Youngstown – it has both retained its moral legitimacy and created precedent which has helped “preserv[e] free government” by limiting the ability of the Executive to act outside the law. Youngstown (Jackson, concurring).
The principle argument in favor of judicial validation of actions taken by the Executive is from Justice Frankfurter, concurring in Korematsu. Frankfurter worried that Jackson’s approach would “suffuse a part of the Constitution [the war power] with an atmosphere of unconstitutionality,” creating the risk that the Executive and his military authorities would cease to see themselves as bound to obey the Constitution.
I do not believe that adopting Jackson’s approach would have this effect. Jackson merely recognizes what the Executive already knows – that it can do what it wants, regardless of what the Court says. See, e.g., Ex parte Merryman. It is difficult to see why a frank acknowledgment of this fact will make such lawless behavior more likely. When the Executive choses to seize “unlimited authority” by “suspending the entire existing order” such that “the state remains [while] law recedes” (Political Theology), it matters not whether the courts object to actions they are powerless to prevent (following Jackson) or following Frankfurter, attempt to rewrite the law to justify these actions.
But when the emergency recedes and the Executive once again seeks not only the naked power of sovereignty but the legitimacy of law, it will matter a great deal whether the laws have been rewritten or whether the courts have remained faithful to the rule of law. For, if the Court has given the Executive “a loaded gun,” it will be easier for the Executive to seize in the future. The emergencies will start to become more frequent and the necessity less pressing, such that the exception swallows the rule and free government becomes a memory.
 See also Ex Parte Milligan. (“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”)