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Emergency Powers for Climate Change

In case of a national emergency, the United States government must, in a quick and focused manner, react. Because an orderly response is most likely to come from one voice—the commander in chief—emergency powers fall into the lap of the president. But over the last 230 years, Congress has bundled more and more powers into the emergency package without the stamp of the Constitution. At the same time, the Trump administration and the American majority grow further apart on what they think real national emergencies are. If the Executive can assume extraordinary powers that rob Americans of a balanced system and their rights, waste time and tax dollars combatting a threat the majority doesn’t recognize and remain active without distinct deadlines, the allocation of emergency power will eventually provoke an emergency in power.

The time is ripe for reevaluation.

This blog will analyze two concerning features within the statutes and cases that form emergency powers– vague emergency conditions and dependency on an increasingly weakened Congress. These features will be put to the test by assuming climate change, as a few congresspersons and presidential candidates would support, is declared a national emergency. Because a climate crisis would create one of the most complex and broadscale emergencies of all time, it is vital to understand how the executive branch could respond to both the threat and the citizen.

First off, the Constitution does not grant emergency powers. According to scholars, the framers applied them based on their understanding of John Locke—a political philosopher who argued why the executive must handle emergencies because, by definition, emergencies have no legislative or judicial remedy. Given the Constitution’s silence, the initial responsibility fell on Congress and consequent court interpretation to outline executive powers. The outline was not clear.

The Prize Cases were the first large bite out of congressional power. Without congressional authorization or declaration of war, Lincoln blockaded the southern ports to defend against possible insurrection. Congress retroactively approved of his actions and the court upheld this decision, concluding that Lincoln fulfilled his duty as commander in chief by snuffing threats to the Union and, even without a Congressional declaration, a state of war had existed since the firing on Fort Sumter. Obviously, Congress often takes time, so if a threat suddenly creeps into the Union’s backyard, the president is expected to get up and chase it out no matter what it looks like. Any measures so long as they appear to be a popular and public necessity, can be used “whether strictly legal or not.”

The Prize Cases set two problematic patterns that repeat in successive cases– the vagueness of emergencies and congressional dependency. First, the court was lucky that Lincoln tackled an emergency with traceable roots: insurrection meant southern invasion blocking the ports. But suppose Lincoln had reason to suspect that rebels were coming through a route in the North or help was coming from the inside, he would have had to block most of the ports and perhaps arrest government members on suspicion of betrayal to ensure the same level of safety. This case establishes no guidelines for gauging the scope of an emergency, and to define the emergency is to define power.

Climate change, one of the most ominous crises in the making, could create this kind of nebulous emergency. The fact that most people believe climate change is human-driven nullifies all statutes and procedures regarding natural disasters, and if a president named climate change a national emergency, the dynamic nature of the crises makes it difficult to surmise which powers are necessary to assume. Greenhouse gases invade the atmosphere through many ways and many interest groups are intent on distorting the facts. Anyone—from the Exxon CEO to the child eating from plastic spoons—could be culpable. Furthermore, in a crisis of the unknowns, a president must prefer more power over less because he is the first, perhaps only, line of defense. By default, the broader the emergency, the broader the power.

The second problematic precedent set by the Prize Cases is congressional dependency. The decision of the court took for granted the fact that Congress approved of Lincoln’s measures after they were executed. But what happens when Congress disagrees with the president? Support for emergency measures that were already executed does not mean no support will stop future measures. Emergency powers are almost impossible to predict and, if successful at preventing an emergency, impossible to oppose. During heightened tension, who is going to argue that the ports should be open to rebels? If Lincoln’s measures succeed, then it would look very bad for a member of Congress to oppose their protector. If they fail, then Lincoln should have taken more drastic measures, not less. The power to oppose is a disproportional burden on Congress.

Cases that follow Lincoln’s path—including those where Congress did oppose the president—still contribute to the burden. After Pearl Harbor, Roosevelt signed Executive Order 9066, requiring all Japanese-Americans to relocate to camps in order to prevent a possible West Coast invasion. When one Japanese-American was arrested after refusing to move, he petitioned the court that Executive Order 9066 violated his fifth amendment rights. The court took its cue from the attitudes in Congress: a declaration of war had been made and, in Hirabayashi v. United States, Congress had already passed Roosevelt’s policies that similarly excluded and relocated Japanese-Americans. The rights of thousands of Americans were dependent on Congress’ green light.

Later, in Youngstown Sheet & Tube Company v. Sawyer, the court decided that Truman’s seizure of private property was unconstitutional solely because he did not act in accordance with Congress. As the concurrence noted, “A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest presupposition and the widest latitude of judicial interpretation, and the burden of proof would be on those who would oppose it.” The only thing standing between extraordinary powers is Congress. However, Justice Jackson noticed, while the executive attains maximum power when authorized by Congress, there exists a “zone of twilight” on issues that Congress has not addressed—issues like climate change.

Thus, even if Congress had not conceded large amounts of statutory emergency power over the decades, there is nothing standing in the way of overbearing control during a climate crisis. If emergency powers expand with emergency scope, and if the only power check is Congress, the latest statute serves as the last check on power.

The National Emergency Act of 1974 requires the president to follow certain formalities when declaring an emergency and limits his power to 136 congressionally defined statutes. These statutes still give extraordinary abilities to the president, such as the capacity to shut down electronic forms of communication, apply sweeping domestic and international economic restrictions, and of course, force Americans into camps.

Although the Act was designed by a committee concerned with the cumulation of power, it has since proved a failure. Fifty-nine new national emergencies were declared and thirty-three remain, which is several times the number of emergencies present at the creation of the Act. And, contrary to the Act’s explicit conditions, Congress has yet to meet once to terminate or prolong any national emergency. Those that ended expired, but none of them had to have deadlines. If it wasn’t for Trump’s controversial move to use emergency powers to secure funds for the southern border, the Act might have kept allowing more emergencies pile into the oval office unnoticed.

But even with renewed attention, the National Emergency Act is little more than a façade. Originally, the Act let Congress terminate an emergency through a legislative veto where the majorities in both chambers acted without a presidential signature. However, the Supreme Court’s decision in INS v. Chadha stripped Congress of the legislative veto as it threatened the separation of powers. The joint resolution was the replacement. But there is a problem– a joint resolution requires a presidential signature that not even majorities in the House and Senate can override. Ironically, in trying to protect against congressional overreach, the Supreme Court made it impossible for Congress to check the executive’s emergency power. Just as Trump vetoed the House and Senate on the southern border emergency, it is highly unlikely future presidents will agree that their emergency declarations are false. A restraint that requires the consent of the perpetrating party is no restraint at all. Thus, The National Emergency Act of 1976 has ultimately done little more than formalize presidential access to unstoppable and extraordinary powers.

Meanwhile, climate action becomes increasingly critical with each passing day, but Congress has yet to pass a single major climate bill. With time running out, the next president needs only to argue that any climate effect among thousands could cause sudden and unforeseeable devastation.  Famine, fire, economic collapse, sudden influxes of climate refugees, special extinction, floods, new strains of pathogens and sweeping outbreaks—the possibility of any or all these crises could warrant a national emergency. Any of these threats could evolve into unexpected forms and germinate new emergencies. Any of them could last from days to decades.

A climate threat makes the reorganization of emergency powers imperative. If the possibility of a climate crisis lives, the president could legitimately grab extraordinary powers, bend them to their needs, and attack the predicted threat without congressional resistance. If the American people are to remain free, either the planet or the power must be rectified. Let’s start with both.