What Are The Main Arguments Against Judicial Review During Times Of Emergency

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Judicial Review in Times During Times of Emergency Is it justified to allow legislators, the ability to enact laws without the constraint of the judiciary in times of emergency? Due to the inability of the court to act in emergency situations, Oren Gross and Mark Tushnet are opposed to the process of judicial review during times of emergency (Cole, 712). Consequently, they believe that legislators should be granted extra-constitutional powers to make decisions without the process of judicial review (712). I disagree with this position. Judicial review, even in times of emergency is essential to protecting the constitutional rights of individuals. I will first outline the main arguments asserted by Gross and Tushnet, which relate to the lack of action taken by the courts in the past (712). Following this, I will outline David Cole’s argument, which demonstrates a strong case for judicial review and the faults he finds in the …show more content…

Gross states that it is inevitable “that executive officials in times of crisis will act extra constitutionally” (713). Since this is expected, in Gross’ opinion, it is necessary to give legislators the authority to “act extra legally when they believe that such action is necessary for protecting the nation and the public” (713). Gross argues that, as long the legislators “openly and publicly acknowledge the nature of their actions” (713) this is a benefit for society (713). Gross defends his arguments by reminding us that by requiring legislators to be transparent with their extra-constitutional actions, they subject themselves to the “judgment of the people” (714). In doing so, the legislators must fairly represent the citizens that they speak for; otherwise they run the risk of not being elected, this in turn will avoid the “abuse of executive powers”

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