Emergencies Need an Expiration Date

C harles C. W. Cooke and several other of my National Review colleagues have written urgently and intelligently about President Joe Biden’s proposal to illegally and unethically extend the Trump administration’s COVID-19 eviction moratorium. But the eviction moratorium is a prime example of a much larger problem with presidential emergency powers.

Since federal emergency-powers law took its modern form during the presidency of Gerald Ford, there have been 71 national emergencies declared — an average of 1.6 every year. Incredibly, 37 of those national emergencies — more than half — are still in effect. Those dozens of semi-permanent emergencies include the 1979 Iran hostage crisis, six crises declared by Bill Clinton touching everything from the business dealings of Colombian narco-traffickers to the development of weapons of mass destruction by the no-longer-extant government of Saddam Hussein in Iraq, eleven emergencies declared by George W. Bush, ten declared by Barack Obama, and three declared by Donald Trump, including the famous “National Emergency With Respect to Imposing Certain Sanctions in the Event of Foreign Interference in a United States Election.”

Ronald Reagan observed that nothing in this life gets as close to immortality as a federal program, and that is doubly true for a federal emergency.

There is one relatively small procedural tweak we could make that would improve this situation greatly: forcing Congress to vote to maintain states of emergency.

Under current law, the president declares a state of emergency or renews one — and, if Congress disagrees, it can end the state of emergency by passing a joint resolution to that end. That is probably the worst way to design a system of emergency powers: It makes it easy for a president to assume such powers but hard to take them away. To do so requires either that the president willingly give them up, which rarely happens, or that Congress take positive action to end the emergency.

Emergencies are like welfare programs or military contracts: Each and every one of them, as soon as it comes into existence, immediately acquires a set of highly motivated financial and political interests that will do everything in their power to keep the money-tap wide open. This is our old friend “concentrated benefits vs. dispersed costs.” The people, political interests, and firms that benefit from states of emergency have money and power on the line, whereas the average voter doesn’t even know that there is a Carter-era state of emergency in effect or care very much what its consequences are. These things are simultaneously vague and specific. Quick, what do you make of the National Emergency With Respect to Blocking Property of Certain Persons Contributing to the Situation in Nicaragua? How do you feel about the . . . situation? Pro or con?

As the architects of our constitutional order understood, it is natural to rely more heavily upon the executive during times of genuine emergency — that is why the president, rather than the speaker of the House, acts as commander-in-chief of the armed forces. And there are times when it makes sense to have the president access unusual powers in response to a genuine emergency. But to fix the current legal framework, we should limit states of emergency declared by the president to no more than ten days, after which time we should require that Congress either vote to extend them for no more than 30 days or let them expire. Yes, that would mean that Congress would spend a lot of time considering various states of emergency. But if it isn’t worth Congress’s time to debate, discuss, and vote on the issue, then the issue is not much of an emergency.

U.S.–Iran relations, for example, should not be conducted on an emergency basis. Neither should our relations with Congo, Somalia, Hezbollah, los Zetas, the Yakuza, or the Russian mob. If the United States government wants to impose sanctions on individuals and institutions involved in those relations or take other emergency actions, then these should be specifically authorized by Congress rather than imposed through phony-baloney “emergency” declarations.

Of course, Washington cannot even manage to conduct its own ordinary business on a non-emergency basis, which is why the U.S. government has been funded by a series of continuing resolutions — a “temporary” fix — since the 1990s. Since 1977, Congress has managed to pass its regular appropriations bills on time only four times: 1977, 1989, 1995, and 1997. That means that there are Americans in their middle 20s who have never seen a U.S. government observe regular order — and Americans pushing 50 who have never seen it do so consistently.

But continuing resolutions expire. States of emergency go on and on — some of those “emergencies” are likely to outlive everyone reading this column, even though almost no one will notice them.

The problem with our increasingly princely model of presidential action is that it is entirely possible to build a dictatorship without a dictator — the dictator need only settle in and enjoy what the democrats have prepared for him.