Political leaders have yielded unilateral and authoritarian control of governments and societies throughout human history. In democratic governments constrained by the rule of law, however, this power may only be used in times of crisis, such as wars or natural disasters. Since all populations face risks and threats like these, most modern societies allow government officials to temporarily employ unilateral control to respond to emergencies.
If governments are to protect the public from emergent threats, they must act promptly. But lawmaking is typically designed to move slowly. To protect the public from harmful rules and abuse of power, government officials are required to follow a deliberate process to propose and enact new laws. Constitutions define these procedures.
The Michigan Constitution of 1963, for example, says that only elected members of the Senate or House of Representatives can propose new laws.[1] These proposed bills cannot become law until copies have been printed and made available to the Legislature for at least five days, and they must be read at least three times in each legislative chamber. Bills become laws if a majority of the members in both the House and Senate approve them in a recorded vote.[2] New laws do not take effect until 90 days after the end of a legislative session, which run in two-year cycles. If two-thirds of each chamber agree, however, a new law can be made immediately effective.[3] The governor must also approve of new legislation passed by majority vote in the Legislature. Bills that are vetoed by the governor must then gain two-thirds support from both chambers to become law.[4]
It takes time to fulfill these requirements: It is not uncommon for new legislation in Michigan to be months in the making. This provides opportunities for bills to be scrutinized, debated, modified and improved before they become law of the land. It also affords elected officials the chance to get feedback from their constituents about these specific proposals. This creates a tighter connection between the preferences of voters and the creation of new laws.
The benefits of a constitutionally required process to make laws are numerous, but so are the reasons why strict adherence to this process might make it more difficult for governments to protect the public from immediate threats. The dangers associated with a fast-developing threat might come and go before the Legislature is able to act, even if it works as quickly as possible. A defining element of emergency powers, therefore, is that they enable the executive branch to temporarily forego these procedural requirements and create law unilaterally, at the stroke of a pen.