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Who Decides on the Emergency? Comparing Institutional Response Capacities in the US Executive and the UK Parliament Post 9/11


What is the connection between the constitutional distribution of powers to respond to emergencies and the actual institutional context in which those powers are exercised? Criticizing the commonplace assumption that the problem of authorizing emergency response is that of creating vast and flexible "powers" that must also be "constrained", the paper highlights an alternative legal politics of emergencies: the politics of institutional competence. It compares functional, legal and ideological features of two institutions situated at the center of the constitutional structure of response powers in two distinct systems post-9/11: the Office of Legal Counsel in the U.S. Executive and the Joint Committee on Human Rights in the U.K. Parliament. The comparison suggests that we should expect a correlation between constitutional choices in the distribution of powers to respond to emergencies and institutional environments in which response activities will actually take place. The problem of authorizing emergency response powers is therefore not strictly that of limiting unconstrained powers but of accounting for environments of power and power relations that are strongly implicated by the constitutional distribution of response competences.

See paper

See also an overview of Karin's project: Emergencies in Public Law: The Legal Politics of Containment (Cambridge University Press, forhcoming, 2015)

24.6.2015 at 14:00 in the Center (room 1013, Madrega building, University of Haifa (see Map)