A Skeptical View of Deference to the Executive in Times of Crisis

18 Pages Posted: 18 Nov 2008

See all articles by Fionnuala D. Ni Aolain

Fionnuala D. Ni Aolain

University of Minnesota Law School; Ulster University - Transitional Justice Institute; University of Ulster - Transitional Justice Institute

Oren Gross

University of Minnesota Law School


In times of crisis there is an unmistakable tendency to augment and extend the powers of the executive branch. This centralizing tendency has been exhibited in numerous legal systems and through varied kinds of crisis. More recently, similar trends have been much in evidence in the United States, and a corresponding academic discourse defending and extolling the virtues of such augmentation has emerged. This Article is skeptical of the virtues of such advice and its ultimate policy benefits. We assert that there are substantial dangers to the centralization of crisis powers in times of emergency. These tendencies hold particular perils for the democratic state. Moreover, the rush to create or cement decision and review making hierarchies can be antithetical to the project of utilizing the strengths of rule of law based societies to respond to the challenges posed by violent actors. The purported benefits of excluding, or at best sidelining, the courts from review of executive actions of crisis regulation are particularly illconceived. Such proposals consistently fail to engage with the importance of across-the-board institutional legal engagement with state action in times of crisis. The success and value of such engagement cannot be measured from the crisis vantage point. Rather it requires an assessment beyond the moment of exception, factoring in a return to normalcy and the impact on law and legal institutions in the post-crisis phase. We assert that scholars advocating for exclusive executive supremacy in times of crisis fail to measure the harms that may be caused by inept or illegal state action, not only as experienced by individual victims but to the broader project of discouraging and dissuading the resort to group based violence.

Keywords: executive power, crisis, courts, executive sumpremecy

Suggested Citation

Ni Aolain, Fionnuala D. and Gross, Oren, A Skeptical View of Deference to the Executive in Times of Crisis. Israel Law Review, Vol. 41, pp. 545-561, 2008 ; Minnesota Legal Studies Research Paper No. 08-43; Hebrew University International Law Research Paper No. 06-09. Available at SSRN: https://ssrn.com/abstract=1302946

Fionnuala D. Ni Aolain (Contact Author)

University of Minnesota Law School ( email )

229 19th Ave. So.
Minneapolis, MN 55455
United States
612-624-2318 (Phone)
612-625-2011 (Fax)

Ulster University - Transitional Justice Institute ( email )

Shore Road
Newtownabbey, County Antrim BT37 OQB
Northern Ireland

University of Ulster - Transitional Justice Institute ( email )

Northland Road
Londonderry, BT48 7JL

Oren Gross

University of Minnesota Law School ( email )

229 19th Avenue South, #430
Minneapolis, MN 55455
United States
612-624-7521 (Phone)
612-625-2011 (Fax)

HOME PAGE: http://www.tc.umn.edu/~gross084

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