A new theory of emergency powers finds room for transformative government action.
“Good” is not the first word that comes to mind when one thinks about emergency powers. That’s unsurprising. Executive powers have become synonymous with executive overreach, erosion of separation of powers, civil liberties violations, suppression of political dissent, and, in extreme cases, transition to authoritarianism. Recent and distant history provide ample evidence of this parade of horribles. Emergency powers law and theory have therefore overwhelmingly focused on constraining the exercise of emergency powers. Under the existing framework, the only permissible purpose of emergency powers is to restore society to its preemergency state through transparent, necessary, and proportional means.
In a new paper, we argue that the existing framework is a poor fit for current global realities. The past few years alone have seen a global pandemic that caused the world to grind to a halt; migration crises in the European Union, the U.S., and Central America; the Russian invasion of Ukraine, with systemic effects on global markets; war in the Middle East; and catastrophe in Sudan. Government response to those crises, particularly in the United States and the EU, relied heavily on emergency powers.
Importantly, many of the enacted emergency measures challenge the standard restrictive framework. They did not just aim to restore a preemergency status quo. They also ushered in transformative policies. In the United States, President Biden relied on emergency powers to support his student debt forgiveness program. And among other measures, the EU enacted a generational stimulus plan—Next Generation EU—practically doubling the EU budget and reshaping its revenue generating instruments. In the process, the program mandated investment in renewable energy and innovation and created a large-scale transfer program from rich northern to less affluent southern EU countries. It also shifted power from EU member states to central EU institutions. None of this can persuasively be said to be strictly necessary and proportional for addressing the underlying emergency, the global COVID-19 pandemic. And yet that is how both the Biden student loan forgiveness plan and Next Generation EU were justified by their proponents.
Societal Transformation Through Emergency Powers
Our claim is that emergency actions that are transformative and not merely restorative should not automatically be invalidated or ruled illegitimate. We argue instead that there exist narrow circumstances in which societal transformations can be appropriately achieved through emergency powers. These circumstances are comparable to constitutional law scholar Bruce Ackerman’s theory of “constitutional moments,” rare moments of “appeals to the common good, ratified by a mobilized mass of … citizens expressing their assent through extraordinary institutional forms.” Our framework does away with the fiction of proportionality in assessments of recent emergency responses, which have stretched the concept beyond recognition. We argue that transformative emergency action is by definition disproportionate to the objective of restoring society to the status quo ante. We instead allow for more transparent analysis of transformative emergency measures for what they are.
Specifically, we argue that emergency measures that (a) are invoked following a severe crisis, (b) are procedurally transparent and time limited, (c) involve broad political consensus, and (d) comply with a strengthened non-discrimination requirement should be upheld even if they are not proportional to the emergency and in fact transform a society instead of simply returning it to the status quo ante.
We assess several U.S. and European transformative emergency measures under our new test. We conclude that while the Trump border wall and Biden student loan forgiveness program fail our test, an earlier U.S. effort, the 2008 Bush auto industry bailout, passes. We also conclude that several transformative European Union measures, most notably the extraordinary Next Generation EU stimulus program, also qualifies as legitimate.
When Should Transformative Emergency Measures Be Upheld?
Our framework expands the existing one by allowing for transformative emergency measures in some cases. We define transformative emergency measures as ones that fundamentally alter the status quo that preceded the emergency. While such measures address the emergency on some level, their impact is broader by design. They are intended to move public policy in a new direction. We do not center on typical applications of emergency powers that aim to restore a community to its preemergency state, such as lockdowns, restrictions on movement, or mandatory vaccination. Those should be analyzed under the traditional emergency powers framework with its requirements of necessity and proportionality.
At the same time, we recognize that although transformative emergency measures have immense potential to promote positive change, they also give executives a large opening for abuse. We therefore add important restrictive conditions. We first limit legitimate use of transformative emergency powers to instances of severe exogenous crises affecting the polity that generate political mobilization toward reform. This condition, which our framework shares with the existing one, is designed to ensure emergency powers don’t supplant the standard legislative and legal processes for promoting new policies and become the default. Additionally, our argument is limited to stable democracies with strong judiciaries. Our framework requires a robust system of checks and balances and presupposes limits on executive power. Our framework excludes measures that usher in authoritarian rule by eliminating the fundamental democratic elements of a system, such as the regular holding of free and fair elections.
We then modify the existing framework by replacing the proportionality requirement with other conditions that do not automatically foreclose transformative measures. A large literature in international, comparative, and domestic law emphasizes that, in the traditional framework, emergency measures must be (a) invoked only following a severe crisis, (b) procedurally transparent and time limited, (c) necessary and proportional to the emergency, and (d) non-discriminatory. We propose an alternative to necessity and proportionality: broad consensus that safeguards the vulnerable.
Our requirement of broad consensus is intended to ensure that even when time is tight, fear is heightened, and legal authorities allow for unilateral action, a wide range of interests are consulted. When progressive and conservative leaders, minority and majority representatives, and other diverse voices stand together to support extraordinary measures, these are more likely to be superior in quality and to be perceived as such relative to unilateral action. However, even emergency measures that enjoy broad support may target a specific vulnerable group. To address this concern, we build on the existing normative framework’s non-discrimination requirement, which prohibits overt discrimination based on suspect classifications like race, religion, and nationality. Our framework also requires investigating whether emergency actions have disparate impact on other vulnerable groups—such as geographically isolated communities—that might not otherwise benefit from anti-discrimination protections. Call it non-discrimination(+).
Our framework provides alternative and more pervasive justifications for upholding or invalidating recent transformative U.S. and EU emergency measures. In the United States, we focus on President Trump’s border wall and President Biden’s student loan forgiveness plan. We argue that the use of emergency powers was transformative in both cases and that both uses fail to pass muster under our proposed framework. The debt relief plan fails our consensus test because it lacked any support from the opposing party. Our analysis provides an alternative justification for the outcome of Biden v. Nebraska, in which the Supreme Court invalidated the plan under the controversial major questions doctrine.
Likewise, the Trump border wall, which relied on emergency military construction authority, fails our consensus requirement and potentially our heightened non-discrimination standard given the unique impact of the project on border communities. In the case of the wall, Congress affirmatively voted twice to express its opposition to the program and the president’s reliance on emergency powers in this case, making it resoundingly clear that it lacked broad support. Our consensus test has a lot in common with the Youngstown framework for judging the constitutionality of presidential action. It similarly places executive action on a spectrum of congressional approval to decide its legality.
However, there are measures that do in fact pass our exacting test. The emergency bailout of the auto industry in 2008 by President George W. Bush, with broad bipartisan support, meets our framework’s criteria. Although there are serious doubts about whether the action was authorized by Congress at the time, there was significant consensus across institutions and political parties in support of the auto bailout. Republican President Bush, Democratic House Speaker Nancy Pelosi, Democratic Senate Majority Leader Harry Reid, and Democratic President-elect Obama all supported using the funds in this extraordinary way.
We also assess a broad range of EU emergency measures in the areas of finance and energy against our framework’s standards and conclude that many transformative EU measures meet them. As top commission lawyer Alberto de Gregorio writes, the EU discovered that Article 122, the emergency article in the Treaty on the Functioning of the European Union, was a “sleeping beauty.” This article bypasses the EU Parliament, and also allows for decision-making on a super-majority, rather than unanimity. We assess more than a dozen uses of this article from 2021 to 2024 to address recent health, energy, and financial crises. These included gas rationing, emergency taxes on exorbitant profits of energy companies, a major unemployment benefits instrument, and an almost trillion-dollar stimulus program, Next Generation EU. But the EU transformation did not end when the coronavirus emergency ended. This September, a major report authored by former European Central Bank head Mario Draghi proposed making key elements of the NGEU program permanent, thus quadrupling the EU’s regular budget, and facilitating the creation of shared European finances. While the Draghi proposal is at a very early stage and its implementation is far from assured, what is in place are extraordinary EU efforts to finance the war efforts and reconstruction of a non-member state, Ukraine.
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We are mindful of the many examples of executive overreach and civil liberties violations the exercise of emergency powers has produced across history—in authoritarian regimes, struggling democracies, and established democracies alike. We worry, however, that this focus on actual and potential abuses causes us to overlook the transformative nature of some emergencies and their potential to trigger necessary reform. Emergency powers can, under limited conditions, be appropriately used not only to return a society to the status quo before the emergency but also to bring about societal transformations. The lessons from this analysis could inform future emergency policies in a world in which the frequency of large-scale crises is alarmingly on the rise and the legal and policy infrastructure for addressing them is constantly lagging.
– Elena Chachko, Katerina Linos, Published courtesy of Lawfare.
