Presidential Emergency Authority, the Declared National Emergency That Never Ends, War Powers in Practice, and the Ratchet That Only Turns One Way
Presidential Emergency Authority, the Declared National Emergency That Never Ends, War Powers in Practice, and the Ratchet That Only Turns One Way
Temporary Exceptions That Become Permanent Features
The United States currently has approximately 40 active national emergency declarations. Some date to the Carter administration. Several address situations that, by any reasonable assessment, ceased to be emergencies during the Clinton administration. The national emergency declared over the Iranian hostage crisis in 1979 – the hostages were released in 1981 – is still technically active. The president is required to review emergency declarations annually and may terminate them. Presidents do not terminate them, because the emergency declarations come with statutory authorities – the ability to redirect funds, impose sanctions, control exports – that administrations of both parties find useful and prefer to retain without the procedural inconvenience of asking Congress to re-authorize them. The emergency state has become the normal state. The temporary exception has become the permanent condition. This is either a manageable legal fiction or a systematic erosion of the constitutional requirement that extraordinary powers require extraordinary circumstances, depending on whether you believe that legal fictions become real things when they operate long enough at sufficient scale.
The post-9/11 expansion of executive emergency power is the most dramatic recent example of the ratchet. The PATRIOT Act, passed six weeks after the September 11 attacks with minimal congressional debate and no dissenting vote in the Senate except Russ Feingold, authorized surveillance powers that privacy advocates had been unable to prevent in years of normal legislative debate. The Authorization for the Use of Military Force, passed three days after the attacks, has been used to justify military operations in at least 19 countries over 25 years, in conflicts that the Congress of September 2001 did not contemplate and might not have authorized. The Department of Homeland Security, created in 2002, became the largest federal reorganization since the creation of the Department of Defense in 1947. The Transportation Security Administration, created to secure airports, has grown into an agency of 60,000 employees whose primary achievement, by the most rigorous assessments, is making air travel significantly more unpleasant while providing security theater of limited demonstrated effectiveness. The ratchet turns. The government grows. The emergency powers remain. The emergency, defined expansively enough, never quite ends.
Historical Case Studies in Crisis Governance: The Hall of Shame and the Hall of Barely Adequate
The internment of approximately 120,000 Japanese Americans during World War II – authorized by Executive Order 9066, upheld by the Supreme Court in Korematsu v. United States (1944), described by the Court itself in 2018 as “gravely wrong” in a decision that came 74 years too late to help the people it had gravely wronged – is the canonical example of emergency powers producing injustice. Military necessity was invoked. No military necessity existed. The people interned were American citizens. The evidence for their disloyalty was nonexistent. The decision was made by a president who is otherwise regarded as one of America’s greatest, which is either evidence that great presidents make catastrophic decisions under pressure or evidence that the criteria for greatness do not include the avoidance of mass civil liberties violations against specific ethnic groups, depending on which of FDR’s decisions you are evaluating.
The COVID-19 pandemic produced a crisis governance stress test of a different kind: a public health emergency that required coordinated national response in a system designed to fragment authority across 50 states and 3,000 counties. The result was 50 different policy responses of varying effectiveness, a federal government that struggled to coordinate production and distribution of basic protective equipment, and an information environment in which the basic facts of a pandemic became politically contested in ways that public health infrastructure was not designed to manage. Approximately 1.2 million Americans died. The counterfactual – what would have happened with better coordination – is unobservable, which means both “the system did as well as possible given the circumstances” and “the system failed catastrophically and cost hundreds of thousands of lives” can be argued with equal conviction and unequal evidence, and both are being argued, continuously, in ways that have produced lasting damage to public trust in public health institutions that will make the next pandemic harder to manage than this one already was.
Institutional Resilience: Does the System Hold Because It’s Strong or Because Nobody Has Pushed Hard Enough?
American democratic institutions have survived 235 years of wars, economic collapses, presidential assassinations, a civil war, political corruption of extraordinary scale, and the gradual erosion of norms that once seemed unassailable. The system has bent. It has not broken. Whether this reflects genuine resilience – structures and cultures robust enough to survive serious stress – or luck – the right people making the right decisions at the right moments – is the question that political scientists are trying to answer and that events are intermittently testing. The 2020 election and its aftermath provided the most significant test of the system’s resilience in the post-Civil War era. State election officials, judges, vice-presidential officials, and members of Congress declined, in sufficient numbers and at sufficient moments, to participate in efforts to overturn the results. The system held. The question of whether it held because of its design or because of individual decisions by individuals who might have decided differently is deeply uncomfortable, because the answer appears to be primarily the latter, which means the system’s resilience depends heavily on the character of the individuals occupying its critical positions, and character is not a constitutional requirement, a legal standard, or a feature that can be built into institutional design. The system works. Until it doesn’t. The experiment continues, with inadequate controls and no control group.
SOURCE: The London Prat