Biden Should Not Use Emergency Powers to Set Policy

For a president of the United States, seeing policy initiatives thwarted by congressional resistance and opinion must be a lot of things divided, frustrating chief among them. But not getting your way because people won’t get with the program is not an emergency. Unfortunately, we live at a moment when many Americans have lost patience with the trade-offs of democratic checks and balances and would really prefer to live under an absolute dictator, so long as a fearless leader champions their causes. And the favorite cause of the moment among supporters of President Joe Biden is environmental policy, which many want him to implement over opposition through emergency powers.

“Invoking a national emergency over climate change would enable President Joe Biden to unleash sweeping actions to restrain greenhouse gas production — such as banning US crude oil exports, ending offshore drilling or speeding the manufacturing of electric vehicles,” Politico‘s Alex Guillen and Ben Lefebvre reported last week of pressure the president faces to invoke emergency powers and hints he’s dropped of doing just that.

“Climate change is literally an existential threat to our nation and to the world,” Biden commented July 20 at the Brayton Point Power Station in Massachusetts. “So my message today is this: Since Congress is not acting as it should — and these guys here are, but we’re not getting many Republican votes — this is an emergency.”

Biden used the word “emergency” without formally invoking emergency powers in an obvious nod to the likes of the Democratic senators who openly called on him to “boldly, declare this crisis the national emergency that it is, and embark upon bold regulatory and administrative action.” A similar letter was sent from members of the House.

Like Biden himself, the lawmakers blamed the lack of action on their preferred policies on failure to gain passage in Congress. But policy proposals fail in legislatures all the time; that’s how the process works. Losing a vote is democracy, not an emergency. The Congressional Research Service (CRS) delved into this issue just three years ago when it examined the scope of emergency powers.

“There are at least four aspects of an emergency condition. The first is its temporal character: An emergency is sudden, unforeseen, and of unknown duration. The second is its potential gravity: An emergency is dangerous and threatening to life and well-being” , the report said. “The third, in terms of governmental role and authority, is the matter of perception: Who discerns this phenomenon? The Constitution may be guiding on this question, but it is not always conclusive. Fourth, there is the element of response: By definition , an emergency requires immediate action but is also unanticipated and, therefore, as [constitutional scholar Edward S. Corwin] notes, cannot always be ‘dealt with according to rule.'”

That said, the CRS report also pointed out that “the exercise of emergency powers has been somewhat dependent upon the Chief Executive’s view of the presidential office” and that hasn’t really been changed by the code of emergency powers through such laws as the National Emergencies Act, Stafford Act, and Public Health Service Act. What constitutes an emergency is still, largely, in the eyes of the beholder, and the political class is prone to beholding disappointments as crises. They have enablers among the public who aren’t really interested in constitutional limits; they just want to get their way.

“Roughly 2 in 10 Trump and Biden voters strongly agree it would be better if a ‘President could take needed actions without being constrained by Congress or courts,'” [more than 40 percent of both groups at least somewhat agree],” according to 2021 polling by the University of Virginia’s Center for Politics.

Ironically, a more recent University of Chicago Institute of Politics poll finds that three-quarters of Democrats and Republicans alike view opposing partisans as “bullies who want to impose their political beliefs on those who disagree.” Pot, meet kettle.

Among the political controls that environmentalists want Joe Biden to impose through emergency powers are detailed agendas prepared by groups including Elected Officials to Protect America (EOPA) and the Center for Biological Diversity (CBD). The CBD proposes that “by declaring a national climate emergency, Biden can: halt crude oil exports, stop oil and gas drilling in the outer continental shelf, restrict international trade and private investment in fossil fuels, promote domestic manufacturing for clean energy, and build energy renewable systems. It’s an ambitious program of green-oriented rule by decree, hampered so far by its failure to win majority support in Congress. It also hasn’t won the public.

“More than a year into Joe Biden’s adults administration, the public is divided over the approach to climate change: 49% of US say the Biden administration’s policies on climate change are taking the country in the right direction, while 47% say these climate policies are taking the country in the wrong direction,” Noted Pew Research earlier this month. That leaves the population split to the same extent as the Senate. Who says the upper house doesn’t represent the people? That’s not a compelling case for bypassing democratic norms to impose policies favored by a frustrated faction.

We’ve been here before, of course. In 2019, President Donald Trump invoked emergency powers in an effort to build the border wall he promised supporters despite congressional refusal to fund the scheme.

“I could do the wall over a longer period of time. I didn’t need to do this, but I’d rather do it much faster,” he commented in an admission that the move was anything but an emergency (a federal judge knocked it down later that year).

And no matter what the believers in the crisis-of-the-moment insist, implementing policy is supposed to be difficult given that it could affect millions of people’s lives. If you want to use the power of the state in far-reaching ways, it’s not unreasonable to ask that you face debate and potential loss.

“Some of those steps would be politically explosive, and could even prove ruinous to his party’s fortunes by sending gasoline prices soaring,” Politico observed of environmental policies that could be imposed under emergency powers. “Others would threaten to alienate European allies looking to US fuel supplies to ease their dependence on Russia.”

But Biden, like his predecessors, is under pressure to deliver through emergency power what democratic norms can’t deliver in terms of a win on controversial policies. The president’s supporters, and Americans overall, might want to reconsider imposing their beliefs on those who disagree, and instead stop looking to government as a vehicle for delivering what they want no matter the cost.

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