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Anon, if judges are "assessing the proportionality of legislative and executive responses" to national emergencies, I leave it to you to explain precisely how that is any different from dictating policy and usurping the role of government. People who reason like this presumably think that judges should have injuncted the bombing of Dresden, the use of the nuclear bomb, or the sinking of the Belgrano. Of course, as individual citizens, judges are free (just as much as you and I) to "warn". The question is about their constitutional power to do more than warn.