Unlawful Actions for Good
By Kevin Schmidt and Thomas Kimbrell
What if instead of unlawfully abusing emergency powers for bad things, presidents unlawfully abused them for “good” things? That’s the argument Berkeley Law Professors Elena Chachko and Katerina Linos make in their paper “Emergency Powers for Good,” published in the William & Mary Law Review. They reiterate that emergency powers are often abused by democracies and autocracies alike. A sampling:
- “Emergency powers are widely, and justly, criticized as threats to the rule of law.”
- “Emergency powers have a bad reputation. And rightly so. Executives have often used emergencies to circumvent the standard democratic or legal process.”
- “We are not sanguine about the many examples of harms and executive overreach the exercise of emergency powers has produced across history—in authoritarian regimes, struggling democracies, and established democracies alike.”
- “Emergency powers have earned their sordid reputation.”
- “It is no surprise, then, that scholarly treatments of emergencies have largely focused on identifying and critiquing their corrosive impact on democratic governance and individual rights.”
These are many of the same reasons that Americans for Prosperity Foundation runs the Emergency Powers Reform Project –to end the government’s rampant abuse of emergency powers that subverts our democratic institutions, undermines the separation of powers, and threatens individual rights. The unlawful misuse of emergency powers laws to unilaterally enact policy in the executive branch is illegitimate regardless of the policy merits.
Despite this agreement about the danger of emergency powers, Chachko and Linos believe “the critical view of emergency powers misses a big part of the picture.” What are we missing? Chachko and Linos argue that in some cases, “invoking emergency powers is the only viable way to break deadlock and enact long overdue reforms.” The authors’ use of “viable” instead of “legal” is telling, and they are more explicit about this later in the paper.
The authors provide examples from the European Union that fit their framework:
[T]he EU also used emergency powers to effectively double the EU budget, speed up the fight against climate change, invest in digital transformations, expand the reach of EU central institutions, and start major transfer programs from northern to southern states.
Is it a coincidence that the policy preferences here go in one direction? They fail to grapple with how to mitigate the “corrosive impact on democratic governance” caused by this expansive use of raw executive power.
The “Emergency Powers for Good” framework, as presented, is a thinly veiled attempt to legitimize the use of emergency powers laws to enact progressive policy by circumventing democratic processes, checks and balances, and the rule of law. The authors appear to believe that a president willing to abuse emergency powers to enact policy change will adhere to their normative preferences reflecting the “proper use of emergency powers for societal transformation.” All told, the theoretical basis for “emergency powers for good” is as firm as quicksand, and the details of the framework fare no better under examination.
Purported “Consensus” Does Not Justify Abuse of Emergency Powers
The authors compare and contrast the conditions for legitimate emergency actions in their proposed Emergency Powers for Good framework with the existing Emergency Powers Constrained framework. Other than “broad consensus” and “non-discrimination(+),” the Emergency Powers for Good framework purports to maintain the same conditions for evaluating the legitimacy of emergency actions as the existing model. Specifically, legitimate emergency actions are invoked in response to a severe crisis and follow a clear procedure, including a declaration of the emergency action and set time limits.
The authors define “transformative emergency measures” as those “that fundamentally alter the status quo that preceded the emergency.” They argue that their framework identifies the conditions under which such action is legitimate.
Typically, emergency measures have sunset clauses and end when the emergency does. By definition, however, transformative measures are not temporary; they indefinitely alter the status quo. In this way, the second condition of the proposed model also diverges from the constrained model, though the authors fail to note the difference.
The proposed framework replaces “necessity and proportionality” from the constrained framework with “broad consensus.” Transformative emergency measures are neither necessary to respond to the crisis nor proportional to it. They are not meant to recover the pre-crisis status quo, but to reform it. The authors argue that broad consensus “creates a presumption that transformative emergency action is normatively appropriate.”
However, consensus is not adequate to legitimize transformative emergency measures. First, crises often create otherwise unlikely consensus.
Crises offer … an escape from constitutional shackles. National emergencies — especially wars or major terrorist attacks — do three things … First, they build public support. Security crises typically produce a rally-round-the-flag effect in which presidential approval soars. Citizens are more likely to tolerate — and even support — authoritarian power grabs when they fear for their safety. Second, security crises silence opponents, since criticism can be viewed as disloyal or unpatriotic. Finally, security crises loosen normal constitutional constraints. Fearful of putting national security at risk, judges and legislative leaders generally defer to the executive.
In this way, in the midst of a crisis, a mirage of consensus may emerge. People are more likely to support measures they would otherwise be wary of. At the same time, opponents are less likely to publicly criticize emergency actions. Under the constrained framework, emergency actions are proportional to the crisis and restore the status quo. However, the effects of transformative emergency measures long outlive any fleeting consensus arising from an emergency, undermining their legitimacy.
The authors further claim that using broad consensus as a condition for legitimizing emergency action is “relatively easy to apply compared to amorphous proportionality and necessity and calculations.” They explain, “It is comparatively easy to ascertain whether the consensus seeking criterion is met: either the opposition or key members thereof actively support the emergency measure at the time it is introduced, or they do not.” But, is it? They write later, “The precise level of consensus necessary in each case may vary.”
The authors provide President Bush’s use of Troubled Asset Relief Program (TARP) funds to bail out the automakers industry as an example of broad consensus for transformative emergency action. However, as the authors admit, “While Democrats were keen to bail out the auto industry, many Republicans opposed this measure as a giveaway to the United Auto Workers.” Indeed, the Senate had already voted down an auto bailout bill, and TARP was specifically for financial institutions, not automakers.
How, then, can the authors claim there was broad consensus for the emergency bailout? The authors note, “Republican President Bush, Democratic House Speaker Pelosi, Democratic Senate Majority Leader Reid, and Democratic President-elect Obama were all supportive of using the funds in this extraordinary way.” A lame-duck president joining ranks with the opposing party’s most powerful leaders over the objections of his own party leaders does not constitute “broad consensus.” In reality, this case was an abuse of emergency authorities that violated the law.
The authors claim the Emergency Powers for Good framework parallels the famous Youngstown framework for determining the constitutionality of presidential action:
Under our framework, the degree of consensus around emergency measures matters for assessing their legitimacy. The precise level of consensus necessary in each case may vary, much like the degree of congressional support or acquiescence under Youngstown. But under both frameworks, stronger agreement among political institutions about the propriety of a certain measure means stronger justification for upholding that.
The authors cite Justice Jackson’s concurrence, which holds, “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”
Congress expressed its will not to bail out the auto industry by not including such a provision in TARP and then voting against follow-up legislation to do so. The Youngstown precedent would find the president’s power to act unilaterally on the matter was at its lowest ebb. Surely, such a low degree of consensus should not be enough to legitimize transformative emergency action.
What degree of consensus would legitimize transformational emergency actions? How would it be measured? The framework does not specify beyond “clear evidence of agreement across political fault lines and institutions creates a presumption that transformative emergency action is normatively appropriate.” The application of the framework to the example provided offers no further illumination. In this case, there is clear evidence of disagreement across political fault lines and institutions. Consensus can only be claimed by ignoring the considerable contingent who opposed the transformative emergency measure.
As a counterexample, the authors state that President Trump’s use of emergency powers to fund the construction of a wall along the southern border fails their consensus test. They note that Congress refused the president’s request to fund the border wall. “Our standard is meant to be exacting,” they write. But Congress also denied funding for the automakers bailout. It seems their consensus standard is actually quite malleable, able to be stretched and flexed to reflect normative preferences.
The Constitution already provides a mechanism to reflect consensus – legislation – but achieving that is intentionally more difficult than the arbitrary and amorphous version of consensus offered here.
Conclusion
While the authors claim to be breaking new ground, their argument is merely revisiting a well-trodden path in favor of using executive branch power grabs to abuse emergency powers. When Congress would not acquiesce, former President Obama said he had a pen and a phone. Presidents of both parties routinely turn to executive action, often on dubious legal grounds, after being spurned by Congress. Despite the authors’ claims that transformative but unlawful actions during emergencies can be “legitimate” if they meet their arbitrary criteria, undermining the separation of powers, democratic institutions, rule of law, and the Constitution is anything but legitimate.
The authors also fail to make a convincing case as to why these policy transformations are only relevant during their “limited conditions.” They write, “[w]e do not mean for the narrow path that our framework opens to replace ordinary legislation.” But they provide no substantive argument for why the expanded power should be limited only to their conditions. What’s the argument for unilaterally addressing “long overdue reforms” other than they think governments can get away with it easier during a national emergency? If the government can discard the rule of law on the back end, why not on the front end? In other words, why not allow these king-like executive powers (only used “for good” of course) anytime?
Ultimately, the Emergency Powers for Good framework is an argument for the benevolent dictator. The framework would offer legitimacy to autocratic dictates that exploit the less constrained political environment that typically follows emergent crises to fundamentally transform the status quo. So long as the specific transformative measures implemented align with some undefined normative preference, the ends justify the means, even if the means corrode democratic institutions.
In reality, autocrats are neither benevolent nor effective. Transformative policies are the most consequential for society and should be implemented through democratic norms.
The timing of the paper lines up with a significant cross-ideological effort to reform the National Emergencies Act of 1976 (NEA). The REPUBLIC Act and the ARTICLE ONE Act passed committees in the Senate and House, respectively, in the 118th Congress. Both bills would amend the NEA to give Congress greater oversight of the president’s emergency powers. So, while abusing emergency powers and discarding constitutional limits might appeal in academia, there is a growing realization in Congress that it needs to be empowered to hold the executive accountable to prevent the very centralization of power Chachko and Linos prescribe.
Kevin Schmidt is director of investigations at Americans for Prosperity Foundation where he co-leads the Emergency Powers Reform Project. His work has been featured in the Wall Street Journal, Washington Post, New York Post, Arizona Republic, Washington Times, and Washington Examiner.
Thomas Kimbrell is a policy analyst at Americans for Prosperity Foundation and co-leads the Emergency Powers Reform Project. His work, which focuses on regulatory reform, transparency, and constitutionally limited government, has been featured in the Wall Street Journal, Forbes, The Hill, and numerous other publications nationwide.
