North American emergencies: The use of emergency powers in Canada and the United States
* Laurance S. Rockefeller Professor of Public Affairs in the Woodrow Wilson School and the University Center for Human Values; Director, Program in Law and Public Affairs, Princeton University; Faculty fellow, University of Pennsylvania Law School. I would like to thank both Princeton University and the University of Pennsylvania Law School for providing moral and material support for this research. I am grateful to Kent Roach, who has been unstintingly generous in teaching me about Canadian antiterrorism law, and to the participants in two wonderful comparative constitutional law conferences at the University of Toronto in fall 2004. I am always, as ever, indebted to Serguei Oushakine for more than I can say. Email: kimlane{at}princeton.edu
Although the United States and Canada have had quite different constitutional frameworks, their uses of emergency powers through most of the nineteenth and twentieth centuries were very similar. In the nineteenth century, national troops were used to put down local rebellions in both countries, often at the request of local governors. With World War I, however, both moved to a statute-based system of regulating emergencies. In Canada, the War Powers Act provided broad delegations of power from the parliament to the executive. In the U.S., delegations were also broad, but accomplished through a series of smaller statutes. These frameworks lasted until abuses of emergency powers were exposed in both countries in the 1970s. And there the parallel history ended. Canada adopted a comprehensive constitutional revision that brought all emergency powers within constitutional understandings. The U.S., on the other hand, continued its use of statutory patches to regulate the relationship between the executive and legislature in times of crisis. As a result, the reactions of the two countries to the events of 9/11 were quite different. Canada responded with a moderate use of exceptional powers, while the US plunged into more extreme uses of emergency powers.