Curbing executive overreach requires a clear definition of “emergency” and limits on powers used to respond to crises.
State, federal, and foreign governments have all exercised emergency powers to address the COVID-19 pandemic. That COVID-19 is an emergency is not controversial. It is a deadly, unforeseen problem requiring urgent, coordinated governmental action.
But if COVID-19 is an emergency, what about other problems? As U.S. Senator Marco Rubio (R-Fl.) said last year in the context of an emergency declared by President Donald J. Trump to allow him to build sections of a Southern border wall, “If today, the national emergency is border security…tomorrow the national security emergency might be…climate change.”
Rubio’s point is worth considering. After all, climate change poses risks that are at least comparable to those posed by COVID-19, and they are significantly greater than the risks posed by undocumented immigration across the United States’ southern border.
The problem is that emergency powers necessarily entitle governments—almost always executive officials—to do things they otherwise could not. Federal agencies can issue regulations without soliciting and responding to comments from the public if they find “good cause” that these requirements “are impracticable, unnecessary, or contrary to the public interest.” These special grants of power require special circumstances, and if government officials have too much leeway in deciding when those special circumstances exist, their power will be effectively unlimited. As David M. Driesen wrote in a 2019 essay in The Regulatory Review, “given free rein to declare emergencies, this President or some future President may invoke the entire range of emergency powers delegated over the years to circumvent Congress and even to establish an autocracy.”
Avoiding that problem requires a clear standard for what constitutes an emergency, but crafting such a standard is not easy. For starters, most people would agree that an emergency requires a significant threat to life or property, but how much of a threat is enough?
In 1994, the Federal Aviation Administration issued emergency regulations after a string of 20 helicopter accidents and 24 fatalities in the previous three years. The U.S. Court of Appeals for the Ninth Circuit found that “good cause” existed. But eight average fatalities per year from helicopter accidents pales in comparison to the 36,000 traffic fatalities, the 36,000 deaths caused by gun violence, or the 647,000 deaths from heart disease in the United States every year.
Moreover, even if everyone could agree on the amount of harm that must be at risk, a large amount of potential harm is not necessarily enough to create an emergency. As Babette E.L. Boliek of Pepperdine Caruso School of Law has noted, “emergency power is not the same as power to address a serious problem.” A key feature of emergency powers is that they allow governments to move quickly, and for that reason emergencies should be sudden events where long-term planning is not feasible. Natural disasters often fit this description; they come with little or no warning and pose an immediate threat.
An emergency is emergent, and the need to address it is urgent. But from this seemingly obvious idea, another issue arrives: If a longstanding problem is left unresolved for long enough, it will eventually reach a point of crisis.
For example, in 1984 the Bureau of Indian Affairs published an interim game code to protect a critically endangered population of big game. The hunting season had already begun, and the U.S. Fish and Wildlife Service had found that “in the absence of a game code wildlife could be reduced to a point where normal propagation and recovery will not occur.” The U.S. Court of Appeals for the Tenth Circuit upheld the emergency rules. But the Arapaho and Shoshone tribes had expressed concern over dwindling game for seven years; the government had simply been unable to agree on a solution before the problem became a crisis.
Most emergencies similarly appear less than emergent when viewed through a broader lens. Any given hurricane will arrive on American shores with only a few days’ notice, but the hurricane season comes reliably every year to the same parts of the country. Likewise, although COVID-19 appears to be an obvious case of emergency, the Trump Administration began receiving warnings about the virus in early January, and scientists have known for years about the danger of virus outbreaks spreading from Asian wet markets.
Commentators are rightly concerned about the President or others creating their own emergency. Yet it appears quite easy to create an emergency by simply ignoring a problem as it grows worse. This possibility for abuse must be restrained, or else emergency powers will become accessible in all kinds of banal circumstances.
Although precisely defining what makes an emergency is difficult, policymakers can take certain steps to reduce opportunistic executives’ ability to seize emergency power. Both Andrew Edgar of the University of Sydney Law School and Cristie Ford of the Peter A. Allard School of Law at University of British Columbia have written essays in The Regulatory Review about the importance of oversight by other branches of government, which can help curb executive overreach during emergency situations.
In addition, emergency powers should be limited to what is necessary to solve the specific emergency at issue. These limits must reflect both the subject matter and the time period that define the emergency. For example, a hurricane should enable the federal government to save lives resulting from that specific storm but not to remake hurricane-response policy generally. And once the emergent nature of the problem has passed, changes put in effect by the emergency should terminate, leaving governments to revert to normal policy processes to address long-term issues. The current state of affairs, where “many national emergencies last for years, or even decades,” should therefore cease.
Because emergencies enable government officials to take actions they could not take under normal circumstances, the rules for invoking those powers should be clear. But many problems—COVID-19, climate change, the debt ceiling, and much more—can easily be cast as either an emergency or a non-emergency, creating ambiguity around how expansive a government’s emergency powers should be. If law is to limit the powers of government meaningfully, it must establish exactly what constitutes an emergency and what powers follow from it.
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June 22, 2020 at 11:28AM
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What Makes an Emergency? - The Regulatory Review
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