Governments should have power to confront genuine crises. But emergency governance shouldn’t become the norm.
Governments should have power to confront genuine crises. But emergency governance shouldn’t become the norm.
A major milestone passed in April 2023 without much notice: the end of the Covid-19 emergency. That month, Joe Biden (who is still president) signed a bipartisan congressional resolution ending the national emergency, declared in 2020, pertaining to the virus’s spread. A separate public-health emergency, initiated by the Secretary of Health and Human Services, ended a few weeks later, in early May. This milestone may have gone unnoticed in part because, by May 2023, most Americans had moved on from Covid-19. Cases had diminished, government restrictions had loosened, and ordinary life had largely returned. Those who did take note of the formal end of the emergency may have been surprised there still was one in effect.
Yet by the standards the federal government applies to exigencies, this particular emergency ended in a timely fashion. Many emergencies, granting vast powers to the president and to executive agencies, are still on the books. Similar declarations could unlock even greater powers. And it’s not just the federal government. State governments have comparable capacities. All governments require some degree of responsiveness to genuinely urgent situations. But the threat posed to our constitutional order by the enhanced government capabilities that lurk throughout our laws make clear that America has an “emergency” emergency.
This state of affairs has confounded the definition of an emergency: typically, a singular, fixed catastrophe, as well as its direct consequences. Think of a widespread disease; a hurricane and the damage it leaves in its wake; a volcanic eruption; the release of toxic waste. But there are currently 43 active national-emergency declarations. One of them dates back to the Carter administration. Others will turn 30 by the end of this year or over the next few. An extended emergency is something of a contradiction.
The president retains some powers from the national emergencies that are still in effect. He could gain even more from further declarations. A mere presidential declaration of this kind could suspend regulations pertaining to chemical weapons, including the prohibition of their being used on humans; enable the seizure of farmland; and force people out of their homes without “a reasonable opportunity to relocate.” These are only a few examples of the powers emergency declarations could unlock for a president.
The Covid-19 era provided a yearslong lesson for Americans about how emergency powers could affect them. And not just at the national level. Under the aegis of emergency declarations, governors across the country unilaterally ordered “non-essential” businesses closed, limited the sizes of public gatherings, and, in one state, even delayed primary elections. Some initial rashness on account of the situation’s novelty is somewhat understandable, if not completely forgivable. But the actions state governments took then demonstrated how much power they might wield with sufficient self-justification.
There are real emergencies. They require the means to confront them. But the temptations of this form of government are obvious. Creative interpretations of both what an emergency is and what the powers one grants might mean could easily do violence to the Constitution by creating shortcuts to action. Take Biden’s attempt to distort a provision in the 2003 HEROES Act enabling the waiving or modification of student-loan debt “in connection with a war or other military operation or national emergency.” Congress passed the bill to assist those serving in the military during war. But Biden attempted to interpret it as applying to anyone with student-loan debt during a national emergency (Covid-19). Fortunately, the Supreme Court rejected this obviously unconstitutional endeavor.
For some, however, the emergency-powers genie is already out of the bottle. Many political activists now see emergency declarations as a shortcut to getting what they want. NOTUS reported earlier this year that environmental activists were pressuring Biden to declare climate change a national emergency so that he could circumvent current restraints on his ability to act on this policy priority. In 2022, abortion advocates entreated Biden to declare a public-health emergency following the Supreme Court’s overturning of Roe v. Wade in the Dobbs decision. Should the political will be strong enough, clever lawyers could doubtless contrive rationales to justify these and similar actions.
As with many problems in our politics, Congress is both the cause and the solution. The activists who want Biden to go over Congress would say that the body is obstructing him in the face of genuine emergencies. But this is a pretext to circumvent the deliberation our Constitution prescribes about large-scale actions of the sort the response they demand would require. Yet Congress is still at fault in another way: It wrote the laws that have empowered the president and the bureaucracy in these various ways and typically acquiesces to sustained emergencies by declining to act to end them.
Representative Chip Roy (R., Texas) believes that Congress can and should buck this trend. Which is why Roy introduced the Article One Act in the House; Senator Mike Lee (R., Utah) introduced it in the Senate. First brought forward before Covid during Donald Trump’s presidency, the bill recognized a bipartisan problem before America witnessed a large-scale instance of it. The bill would allow the president to declare an emergency for 30 days before requiring him to come to Congress for an extension thereof.
The intent is that “the burden should be flipped” from an assumption that the chief executive can continue an emergency indefinitely to one in which Congress must continue it, Roy said. He believes that this bill could be a bipartisan cause; NOTUS reports that it already has Democratic co-sponsors. It makes sense that members of Congress, often divided, might be able to unite on a bill that strengthens their own power. “It’s called the Article One Act for a reason,” Roy said. “It’s about restoring congressional primacy.”
Similar action has already occurred at the state level. Courts thwarted emergency actions of governors during Covid-19 lockdowns. In some states, legislatures and even voters themselves have since restrained the emergency powers of their governors. Such efforts are not only salutary but also necessary. “‘Emergencies’ have always been the pretext on which the safeguards of individual liberty have been eroded,” economist F. A. Hayek wrote in 1979. “And once they are suspended it is not difficult for anyone who has assumed emergency powers to see to it that the emergency will persist.” It is necessary to protect our constitutional order from and during emergencies. But it is also necessary to protect it from the political distortions emergencies can induce.