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Emergency Powers Are Not the Answer on Abortion or Climate Change

The effects of the Supreme Court’s ruling and climate change are true crises, but there is no workaround for an unwilling Congress.

July 21, 2022

Our coun­try is beset by crises. The Supreme Court’s decision in Dobbs v. Jack­son Women’s Health Organ­iz­a­tion did not merely abol­ish a consti­tu­tional right women had enjoyed for a half century. It placed the lives of women — in partic­u­lar, women of color — in imme­di­ate and ongo­ing peril. At the same time, climate change is wreak­ing havoc on the planet, with extreme weather creat­ing mount­ing death tolls and finan­cial costs. Despite broad popu­lar support for abor­tion rights and for action on climate change, Congress refuses to pass the legis­la­tion that would be needed to address these crises.

Facing these grim real­it­ies, some Demo­crats are pres­sur­ing Pres­id­ent Biden to issue emer­gency declar­a­tions to address both the fallout from Dobbs and climate change. The desire for such action is under­stand­able, if only because it would under­score the urgency of these prob­lems. But it’s the wrong solu­tion. Emer­gency powers are a poor fit for these crises, and invok­ing them could do more harm than good.

The Bren­nan Center has conduc­ted intens­ive research into emer­gency powers over the past five years. In 2018, we published a compre­hens­ive guide to the powers that become avail­able to the pres­id­ent during a national emer­gency. We have test­i­fied before Congress on the need for reform of the National Emer­gen­cies Act and suppor­ted litig­a­tion chal­len­ging abuses of emer­gency powers in multiple federal courts. In a 2019 article in the Atlantic, I made the case that emer­gency powers “provide the ingredi­ents for a danger­ous encroach­ment on Amer­ican civil liber­ties.”

As I explained in the article, emer­gency powers have a specific and limited func­tion in our consti­tu­tional system. Their purpose is to give pres­id­ents a short-term boost in power in situ­ations that Congress cannot have fore­seen (because they arise suddenly and without warn­ing) and that Congress is ill-suited to handle (because they require imme­di­ate or highly nimble responses). Emer­gency powers are not inten­ded to address long­stand­ing prob­lems, no matter how seri­ous. Nor are they meant to author­ize perman­ent or long-term policy solu­tions that Congress itself could provide but has chosen not to.

Donald Trump’s declar­a­tion of a national emer­gency to secure fund­ing for a border wall was an unpre­ced­en­ted abuse of emer­gency powers. For one thing, there was no crisis at hand. Illegal border cross­ings at the time were hover­ing near a 40-year low, and there was no cred­ible evid­ence that unlaw­ful immig­ra­tion was threat­en­ing public health or safety. In that respect, the situ­ation was entirely differ­ent from the current one, in which women’s health is at meas­ur­able risk and the coun­try is ravaged by droughts, fires, and floods. It would be specious to deny that Dobbs and climate change pose imme­di­ate and urgent threats.

But that was not the only prob­lem with Trump’s declar­a­tion. Trump had reques­ted fund­ing for the border wall multiple times, and Congress refused to provide it. Trump was there­fore using emer­gency powers to get around Congress in a situ­ation where he could not persuade lawmakers that his desired policy was the right one. That’s both an improper use of emer­gency author­it­ies and an attack on the consti­tu­tional separ­a­tion of powers. As I wrote at the time, “The National Emer­gen­cies Act is not — and was never inten­ded to be — a consti­tu­tional work­around for a pres­id­ent who cannot bend Congress to his will.”

In the seven-plus weeks between the leak of the draft Dobbs opin­ion and the issu­ance of the decision, Congress had time to act — and made its will clear. The Senate took up a House-passed bill that would have made abor­tion legal in all 50 states. The bill failed by a vote of 49 to 51. Had it passed, there would be no discus­sion of an emer­gency declar­a­tion. The very point of such a declar­a­tion would be to provide the relief—or at least, some part of it—that Congress with­held.

That dynamic is even more stark in the climate change context. For two years, Biden has pressed Congress to enact his Build Back Better bill, which includes robust provi­sions to combat climate change. Last week, Sen. Joe Manchin (D-WV) once again scuttled talks among Demo­crats aimed at moving the bill forward. His oppos­i­tion, added to that of all 50 Repub­lican senat­ors, will prevent Demo­crats from reach­ing the 50-vote threshold needed to pass the bill through the budget recon­cili­ation process. Calls to use emer­gency powers, in this instance, are expressly aimed at getting around a single senator.

Invok­ing emer­gency powers for climate change would be inap­pro­pri­ate for another reason. By defin­i­tion, emer­gen­cies are sudden and unfore­seen. It is that element, along with their quick-moving nature, that justi­fies invok­ing a differ­ent and more flex­ible set of laws. We have been on notice about climate change for decades, and scient­ists have had a good grasp of its progres­sion and likely consequences for years. It’s an urgent prob­lem, but also a long­stand­ing one.

Finally, in both contexts, emer­gency powers are not being proposed as a stop­gap that will stay in place only for a short period, until the crisis passes. Both crises will be with us until we have a Congress — or in the case of Dobbs, a Supreme Court — that is will­ing to address them, and that could take years. The purpose of the proposed emer­gency declar­a­tions would be to enable long-term policy solu­tions that Congress did not or will not support.

Some might argue that the tangible bene­fits of these declar­a­tions would outweigh the less tangible (or at least less imme­di­ate) costs of misus­ing emer­gency powers. But precisely because emer­gency powers are not meant to address larger policy prob­lems, they are gener­ally poorly suited for that purpose. With respect to abor­tion access, health law experts have ques­tioned how effect­ive an emer­gency declar­a­tion would be, given the legal and prac­tical limits on the author­it­ies it would trig­ger. As Geor­getown health law professor Larry Gostin put it, “The juice isn’t worth the squeeze. You face huge legal and polit­ical head­winds and you gain very little, if anything, that you could­n’t do without the emer­gency.”

For climate change, a hand­ful of emer­gency powers could be pressed into service, but not even the staunchest support­ers of a climate emer­gency are suggest­ing that they would be suffi­cient. Solv­ing the prob­lem of climate change — or simply meet­ing Biden’s commit­ment to achieve a 50 percent reduc­tion in green­house gas emis­sions by 2030 compared with 2005 levels — will neces­sar­ily require legis­la­tion to provide new author­it­ies and greatly increased resources. And for either declar­a­tion, we can safely assume that the next Repub­lican pres­id­ent would rescind it on his or her first day in office.  

More import­ant, sacri­fi­cing consti­tu­tional prin­ciples is short-sighted, no matter how worthy the goal. Trump’s misuse of emer­gency powers to sidestep Congress can be chalked up to an aber­rant pres­id­ent who believed there were no limits on his powers. It will be much harder to push back against the next such misuse if Pres­id­ent Biden, a cham­pion of the rule of law, has valid­ated using emer­gency powers in the face of congres­sional resist­ance. And the next misuse might not be so benign in its inten­ded outcome. It’s no acci­dent that Trump’s allies turned to emer­gency powers when suggest­ing ways he could over­turn the results of the 2020 pres­id­en­tial elec­tion. As I wrote in the Atlantic, emer­gency powers “have the poten­tial for creat­ing emer­gen­cies rather than ending them” — emer­gen­cies that will come with their own grave and concrete harms, and that could threaten our very demo­cracy.

Given the dysfunc­tions in our demo­cratic system, grid­lock in Congress is likely to be the norm for the fore­see­able future. The tempta­tion to use emer­gency author­it­ies to shift power from the legis­lature to the pres­id­ent will only increase. But it’s misguided to think that we can rely on emer­gency powers to solve policy prob­lems or to resolve disputes between the White House and Congress. There may be exec­ut­ive actions that the pres­id­ent can appro­pri­ately take that do not rely on emer­gency declar­a­tions, and the pres­id­ent should take them. Ulti­mately, though, there are no short­cuts here. The real solu­tion to Dobbs and climate change is to take every step within our power to ensure that we have a Congress that fairly repres­ents the will of the Amer­ican people.