Emergencies and Democratic Failure
Access StatusFull text of the requested work is not available in DASH at this time ("restricted access"). For more information on restricted deposits, see our FAQ.
Posner, Eric A.
MetadataShow full item record
CitationEric A. Posner & Adrian Vermeule, Emergencies and Democratic Failure, 92 Va. L. Rev. 1091 (2006).
AbstractCritics of emergency measures such as the U.S. government’s response to 9/11 invoke the Carolene Products framework, which directs courts to apply strict scrutiny to laws and executive actions that target political or ethnic minorities. The critics suggest that such laws and actions are usually the product of democratic failure, and are especially likely to be so during emergencies. However, the application of the Carolene Productsframework to emergencies is questionable. Democratic failure is no more likely during emergencies than during normal times, and courts are in a worse position to correct democratic failures during emergencies than during normal times. The related arguments that during emergencies courts should protect aliens, and should be more skeptical of unilateral executive actions than of actions that are authorized by statutes, are also of doubtful validity.
Citable link to this pagehttp://nrs.harvard.edu/urn-3:HUL.InstRepos:11357458
- HLS Scholarly Articles