National Emergencies: Necessary Evils or Creeping Authoritarianism?
Emergency declarations often outlive their usefulness while becoming an excuse for the government to amass more power.
In January, four months after President Biden let slip in an interview that “the pandemic is over,” the White House denounced two pieces of congressional legislation declaring an end to the pandemic, calling them “a grave disservice to the American people” that could cause hospitals and nursing homes to be “plunged into chaos” and result in “thousands of migrants per day” entering the country as Title 42 provisions ended.
The very next month, the same White House via the Department of Health and Human Services announced that, due to current COVID-19 trends, the pandemic Public Health Emergency would end in May. But 24 hours later, the administration seemed to reverse course yet again, and released a “Notice on the Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic.” And after all that, in mid-April, President Biden actually signed legislation declaring an immediate end to the pandemic.
To be fair, President Biden included in the Continuation document the same assumption that the pandemic emergency would officially end in May, but because a federal statute requires annual renewal of emergency declarations (in this case, March 1), an extension was necessary. In any event, ordinary folks unaccustomed to the ways of bureaucracy could be forgiven for finding it odd that the government would schedule the end of an “emergency” three months in advance.
Emergencies are by nature unpredictable, “emerging” suddenly. They are also by nature transitory. A calamity occurs requiring immediate and often drastic action, but relatively quickly a transition occurs to more measured responses, mitigation efforts and recovery.
But that’s often not so when the government is involved.
"You never want a serious crisis to go to waste," Rahm Emanuel famously told an audience days after Barack Obama was elected, during the financial meltdown that became the Great Recession. The words of Obama’s soon-to-be chief of staff were cited as a classic Kinsley gaffe, and indeed the attitude he expressed is as old as politics itself. While the Annenberg Center’s FactCheck.org later wrote that Emanuel got a “bum rap” for the aphorism, because he expressed it in bipartisan terms, it isn’t partisan bias that gives the adage its sinister ring– but the long history of insidious authoritarian powers governments acquire and retain in the wake of crises.
The current case before the Supreme Court involving President Biden’s student loan forgiveness edict is a prime example. While President Trump invoked the COVID emergency to pause payments on student loans, Biden wants to outright erase $400 billion in loans due to the COVID emergency that his administration has now officially declared to be over.
In August 2022, less than a month after the loan forgiveness scheme was announced, COVID conditions had settled enough to prompt the gaffe from the president, and conditions in January 2023 were such that the administration foresaw ending the emergency in May. But that didn’t stop them from wheeling it out to enact a long-held progressive policy goal.
Extraordinary governmental actions during times of crisis are certainly not a new phenomenon. Abraham Lincoln suspended habeas corpus during the Civil War, and Franklin D. Roosevelt notoriously sent thousands of Japanese-Americans to internment camps shortly after Pearl Harbor.
In the 1970s, with the Vietnam War dragging on and Congress fretting about executive usurpation of its own power, a yearslong process eventually produced the National Emergencies Act, signed into law by President Ford in 1976. According to a 2021 report by the US Senate’s Historical Office, the “law ended four existing states of emergency and instituted accountability and reporting requirements for future emergencies.” The intervening near-half century casts doubt on the efficacy of the law.
In fact, the very first emergency declaration under the 1976 law, issued by President Carter in 1979 in response to the Iranian takeover of the US Embassy, is still in effect almost 44 years later. During that time, American presidents have declared another 72 national emergencies, and perhaps even more remarkably, 42 of those “national emergencies” remain in place today.
Some national emergencies seem to start and stop depending on who sits in the Oval Office. President Trump found the immigration situation on the southern border to be an emergency in February 2019. President Biden disagreed and ended the emergency less than two years later. In June 2020, President Trump declared a national emergency to try to limit the actions of the International Criminal Court related to the attempted prosecution of “US or US-allied personnel in connection with the War in Afghanistan.” Less than a year later under President Biden, the emergency was called off.
Most national emergencies, however, have transcended partisanship. Though President Biden ended two Trump-declared emergencies, nine others remain active. For all his criticism of Barack Obama, President Trump continued every one of the 11 Obama era emergencies for his entire term (Biden has since ended two of Obama’s). And before Trump, President Obama continued 11 of 13 George W. Bush emergencies.
While some emergencies certainly seem to live up to their billing (preventing the “Proliferation of Weapons of Mass Destruction,” 1994), others sound decidedly anodyne (“Continuation of Export Control Regulations,” 2001) or obscure (“Blocking Property of Certain Persons Undermining Democratic Processes or Institutions in Belarus,” 2006), relating to a part of the world many Americans would struggle to find on a map.
Emergencies that are clearly not emergencies undermine the public’s confidence that the government really has its best interests at heart. Masking requirements, school closures and other draconian measures taken in the name of public health during the last three years are coming under increasingly strident criticism. Even the editorial board of the Washington Post, generally supporters of progressive policies, recently called for a second look at so-called emergency powers in the context of the student loan case:
In this dispute, the proper answer is for Congress to revisit the Heroes Act, clarifying it does not permit presidents to offer such poorly targeted loan forgiveness. While they are at it, federal lawmakers should review the long list of emergency powers they have given the executive branch over the decades, curbing or eliminating those that are unclear or unneeded. [emphasis added]
Governments need to be able to respond effectively to unforeseen events, to be sure. But a government that can declare open-ended emergency powers, however, is a government that is slowly but surely acquiring a taste for authoritarian control that it will be loath to surrender. Sooner or later, that will lead to a real national emergency.