Original scientific paper

American executive unilateralism and the “war on terror”

Đorđe Gardašević ; Faculty of law, University of Zagreb, Zagreb, Croatia

Abstract

States of emergency at the constitutional level typically result in a critical disruption of competences between the fundamental constitutional institutions (representative, executive and judicial bodies). In that regard, comparative practice and doctrine suggest
that this process usually leads to a concentration of constitutional powers in executive bodies, while suppressing the role of the legislative and the judiciary in crisis situations, which is typically formulated as the requirement of legislative and judicial “self-
restraint”. In modern American state of emergency doctrine, a normative requirement of this kind, effecting supremacy of the executive, is termed “executive unilateralism”. The article presents an analysis of the theoretical viewpoints expressed by several relevant contemporary American scholars (J. Yoo, R. Posner, E. Posner and A. Vermeule), commonly placed within the framework of executive unilateralism. So, with a view to a scientific verification of their theses and conclusions, an analysis is carried out of specific
provisions of the Constitution of the United States of America whose application has direct relevance to procedures related to states of emergency (declaration of war, suspension of habeas corpus, inherent powers of the president). In addition, the author analyses a
separate normative proposal to qualify the modern American “War on Terror” as a sui generis state of emergency, with no historical or theoretical precedent, as well as certain concrete emergency measures undertaken in the last decade. The author concludes that
none of the fundamental statements of the contemporary American executive unilateralism are either fully accepted or original in the theoretical sense, considering that they were all articulated in the early history of American crisis situations, in terms of both doctrine
and practice.

Keywords

state of emergency; emergency situations; crisis situations; terrorism; declaration of war; habeas corpus; inherent powers

Hrčak ID:

70480

URI

https://hrcak.srce.hr/70480

Publication date:

15.7.2011.

Article data in other languages: croatian german

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