Last week, South Korean President Yoon Suk Yeol declared martial law, invoking Article 77(1) of the country’s constitution. Yet that provision plainly was inapposite. It authorizes the president to proclaim martial law if “it is required to cope with a military necessity or to maintain the public safety and order by mobilization of the military forces in time of war, armed conflict or similar national emergency . . . .” South Korea was not under attack from North Korea or any other adversary, was not experiencing a natural disaster, and was not in any way in the midst of a genuine emergency.
President Yoon nonetheless claimed authority for the declaration because the opposition Democratic Party (DP)—which holds a majority in the National Assembly—was frustrating his policy agenda by voting it down and seeking to launch investigations of alleged wrongdoing by his wife. Yoon said that he was imposing martial law because his political opponents were working for North Korea, but there was no evidence to support that claim. Accordingly, within hours of Yoon’s declaration, the National Assembly voted to instruct him to lift it—as the National Assembly has the power to do under Article 77(5) of the constitution. Yoon complied and later apologized for having declared martial law in the first place.
The apology has not assuaged the people of South Korea, many of whom have taken to the streets in large numbers demanding that Yoon resign or that he be impeached. Meanwhile, DP members are seeking to impeach Yoon. At first it appeared that members of Yoon’s own People Power Party (PPP) would go along with the impeachment effort, but over the weekend they did not cooperate. Article 65(2) requires a two-thirds majority of the National Assembly to impeach the president. PPP members frustrated the impeachment effort by failing to show up to the National Assembly to vote. DP leaders have vowed to renew the impeachment attempt. Meanwhile, the Justice Ministry has barred Yoon from foreign travel. It is possible that by the time this column goes to press, there will have been still further important developments in South Korea.
Putting aside the fate of President Yoon, last week’s events in South Korea warrant study for what they tell us about the potential pitfalls of constitutionally authorized emergency powers—and also for what they tell us about the ultimate guarantor of constitutional democracy.
Emergency Powers
The South Korean constitution is not unique in granting the top official in the executive branch of government authority to declare a national emergency, nor is it unique in also giving the national legislature the power to check that authority. Many other national constitutions do the same.
Providing for official emergency powers in a constitution has benefits but also costs. The justification for emergency powers is straightforward. During war, natural disaster, and other emergencies, swift and decisive government action is often needed. The usual processes of government may be too slow for the action necessary. In addition, public deliberation and debate—the ordinary stuff of democratic politics—may themselves be incompatible with mounting a successful response to an existential military or other threat.
The risk of emergency powers is that they may be abused. For example, in the mid-1970s, Prime Minister Indira Gandhi ruled India under an ostensible state of emergency for nearly two years, during which time her government committed serious violations of civil rights and civil liberties. Notably, parliament facilitated her emergency rule, illustrating the limited utility of a legislative check on a declaration of emergency—especially when, as was true in India at the time—the head of government belongs to the party that controls the national legislature.
American Exceptionalism
Is the United States different? As a formal matter, the U.S. Constitution does not give the president any emergency powers, although the reality on the ground is more complicated. As the late Chief Justice William Rehnquist explained in his insightful 1998 book, All the Laws But One: Civil Liberties in Wartime, as a practical matter, in wartime Congress and the courts have frequently given the president greater leeway to exercise the regular powers of office in ways that they would not countenance in peacetime.
That phenomenon is at best a mixed blessing. It allows presidents to marshal power to meet the moment, but it also permits abuses. For example, the Supreme Court’s infamous ruling in Korematsu v. United States—upholding the racist policy by which Japanese Americans were exiled from their west coast homes and sent to detention centers—was based on deference to the executive branch in wartime military matters.
Moreover, as the title of Rehnquist’s book implies, just because American presidents don’t have emergency powers, doesn’t mean they don’t sometimes try to exercise them. Early in the Civil War, with Congress out of session, President Abraham Lincoln purported to suspend the privilege of the writ of habeas corpus on his own authority. Even though Lincoln was willing to abide by a contrary congressional decision, Chief Justice Roger Taney ruled that the president lacked any unilateral power to suspend habeas corpus. His opinion in Ex Parte Merryman noted that the Suspension Clause of the Constitution appears in Article I, governing the powers of Congress, not in Article II, which describes the president’s powers.
On July 4, 1861, Lincoln responded to Taney’s challenge in an address to Congress. He asked rhetorically about the Constitution’s legal limits on suspension of habeas corpus: “Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated?”
It is difficult not to sympathize with Lincoln, whose cause was just, as against Taney, the author of the infamous Dred Scott opinion. But if emergency powers can be exercised in the interest of justice, they can also be deployed for dubious ends. During his first term, for example, President Donald Trump declared an emergency as ostensible legal grounds for diverting funds Congress had appropriated for other purposes towards the construction of a border wall. In the aftermath of the 2020 presidential election, he reportedly considered declaring martial law. In weighing the costs and benefits of emergency powers, one must take account of the fact that a Trump, no less than a Lincoln, would have authority to exercise them.
Parchment Barriers
Why didn’t Trump declare martial law in December 2020? What might stop him from doing so at some point in the next four years?
It is tempting to say “the Constitution.” Prior to Chief Justice Taney’s ruling in Merryman, it was at least plausible to contend that the president had the power to suspend the privilege of the writ of habeas corpus because the Suspension Clause is silent on the question of which state actor exercises it. By contrast, no provision of the Constitution empowers a president to impose martial law in any circumstances.
However, the written Constitution does not provide self-executing restraints on presidential emergency powers. As Justice Robert Jackson famously wrote in his concurrence in the Steel Seizure Case, “power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers” and into the grasp of the president. Justice Jackson might have added that the courts can also provide a check on presidential power—as they did in Steel Seizure itself—but only if the president obeys the courts’ decrees or other executive officials, including military officials, stand ready to defy unlawful orders by the president.
Suppose President Yoon had defied the National Assembly and refused to revoke the declaration of martial law. Suppose that during his second term President-elect Trump attempts to impose martial law. In neither South Korea, the United States, nor anywhere else where such an event might occur could a constitution do anything to stop it. After all, a constitution literally consists of words, its provisions no more than what James Madison, writing in Federalist No. 48, called mere “parchment barriers.” In the end, our institutions—including, crucially, the military—are only as protective of the rule of law as the people who run and serve in them.
