The United States has no federal legislation comparable to Canada's War Emergency Act invoked by Prime Minister Pierre Trudeau yesterday, two Law School professors said last night.
Archibald Cox, Williston Professor of Law, and Paul A. Freund, Loeb University Professor, agreed yesterday that no existing federal statute would allow the government to set aside the normal procedures and rights granted by the Constitution.
"We have never gone as far as the British in investing powers in the Prime Minister or the Cabinet," Cox said. "We don't have anything that authorizes the President to run the country by executive order."
Freund said, however, that the state governments do have the power to declare martial law "if there is some serious threat to the existence of the state government" or if there is a likelihood of criminal activity in the wake of a catastrophe.
The Constitution empowers the Congress "to provide for calling forth the militia to execute the laws of the Union, to suppress insurrections and repel invasions."
It also guarantees that the federal government shall protect state governments against "domestic violence" at the request of the legislative or executive branch of the state governments.
"As to a national scale, the only power I know of is the power to suspend the writ of habeas corpus and that is rather strictly confined," Freund said.
In Article I, Section 9, the Constitution says that "the privilege of the
writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
President Lincoln attempted to suspend the privilege of the writ of habeas corpus by executive order during the first two years of the Civil War. When that was ruled unconstitutional by the Supreme Court, the Congress expressly authorized him to suspend it, with safeguards, for the duration of the war.
"Of course we had martial law in Hawaii in World War II when it was thought that the inhabitants of Japanese ancestry might be a danger there," Freund said. "But that was declared unconstitutional after the imminent danger of invasion of Hawaii had ended."
He also referred to the internment of Japanese aliens and American citizens of Japanese origin during World War II, but, he added, "I think everyone would agree that it went to the verge of the Constitution."