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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.