Executives in Crisis: An Examination of Formal and Informal Emergency Powers
In “Executives in Crisis,” Brandon J. Johnson explores how different constitutional systems structure executive emergency powers and the consequences for democratic resilience. He distinguishes between formal systems, which explicitly authorize emergency powers (e.g., Weimar Germany’s Article 48, France’s “state of siege,” and India under Indira Gandhi), and informal systems, such as the U.S., where presidents have relied on broad or implied powers. The article argues that explicit provisions, while appearing to safeguard order, often facilitated authoritarian takeovers: Hitler in Weimar Germany, de Gaulle’s consolidation of power in France, and Gandhi’s suspension of rights in India.
By contrast, the U.S. Constitution lacks a formal emergency clause, leading presidents from Lincoln to Bush to act flexibly within ambiguous constitutional boundaries. This has prevented outright dictatorship, but at the cost of a gradual, sometimes permanent expansion of executive authority, especially when informal checks like congressional oversight or public sanction weaken. Johnson ultimately concludes that informal systems, like that of the U.S., are less prone to legalizing dictatorship, but they depend heavily on political culture and restraint. Where executives ignore informal constraints, constitutional order risks erosion just as in formal systems.
The full text of the article and a PDF version is available on the University of Pennsylvania’s Journal of International law website here.
Journal Article: Executives in Crisis: An Examination of Formal and Informal Emergency Powers
Journal: University of Pennsylvania Journal of International Law
Date of Publication: 2020
Author: Brandon J. Johnson, Schmid Professor of Excellence in Research and Assistant Professor of Law, University of Nebraska-Lincoln College of Law; then a Judicial Law Clerk, Seventh Circuit Court of Appeals.
How to Cite: Brandon J. Johnson, Executives in Crisis: An Examination of Formal and Informal Emergency Powers, 42 U. Pa. J. Int’l L. 341 (2020).https://scholarship.law.upenn.edu/jil/vol42/iss2/1
