The Separation of Powers: {Explained}

IV. When Emergency Powers Are Wrongly Used to Tackle Chronic Problems

The Problem

What’s the problem with government’s reliance on emergency powers?

As Democratic operative Rahm Emanuel once mused, “Never let a good crisis go to waste. It’s an opportunity to do the things you once thought were impossible.” Emergency powers are frequently abused, at least in part because executives don’t understand—or pretend not to understand—the difference between an emergency and a chronic problem. An emergency is a problem that has just “emerged” and may require an immediate action. Even so, Congress and state legislatures can be called to act shortly afterwards, and they should not shirk their duty and yield to executive decision-making.

By comparison, a chronic problem may be genuinely quite serious, but will nonetheless continue for months or years and is therefore amenable to legislative action on a conventional timetable. Despite these differences, many executives and those who favor more government control for other reasons intentionally blur the distinction or rationalize their abuse of emergency powers for supposedly noble ends.

A key component of the problem is that assertions of power in the face of an “emergency” tend to continue far too long or become virtually permanent. “Nothing is so permanent,” Milton Friedman famously said, “as a temporary government program.” Consider the Tea Tasters Bureau, formed in 1897 in response to a wave of reports about impure tea. The problem eventually went away, but the Tea Tasters Bureau lasted another 99 years, until 1996. The Johnstown Flood Tax was passed in 1936 to clean up after a truly devastating natural disaster in Pennsylvania, and it’s still on the books today.

Once exercised, few executives want to yield their broad unilateral power. Because those unilateral assertions of power are not debated by a legislative body and subject to political and other compromises, they tend to seriously infringe individual liberty. Many state and local executives got a taste of this power, and like the senator-turned-emperor from Star Wars, they are loathe to give up their newfound powers.

Another key component of the problem is that it’s inherently difficult for central planners to make good decisions about how to manage a complex society, especially if they have to make decisions quickly or under pressure. Those decisions tend to be arbitrary, and personal or political bias by a single decision maker can lead to restrictions that don’t apply equally in similar situations. Such deficiencies may be unavoidable in the short run if action is truly required in response to a genuine emergency, and the costs may be limited if the emergency expires quickly. If the assertion of power continues, however, the harm increases for various reasons.

We are all too familiar with the unilateral rule of governors and mayors in response to the COVID-19 pandemic. Although emergencies may require swift, initial responses, time allows legislators to fulfill their constitutional duty as the people’s representatives who make law, and for courts to constrain the worst abuses of power.

The Solutions

What are the solutions?

Model legislation that limits the duration of emergency powers and subject their exercise to review by other branches; key components: requiring exercise of emergency power to be narrowly tailored for a compelling purpose; automatic sunset dates for emergency orders.

Substantive legislation that limits the type of emergency power that can be exercised by different officials or the situations when such power can be exercised.

Court decisions that overturn or severely limit the exercise of emergency powers that infringe constitutional rights (that are broadly defined) and apply them unequally.

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