The Politics and Policy of a National Climate Emergency Declaration
“A significant feature of American government during the last fifteen years is the expansion of governmental activity on the basis of emergency.” That is the opening line in a 1949 academic paper on “Emergencies and the Presidency.” The role of the president in declaring a state of emergency to achieve policy goals has been a policy issue that dates back at least to President Abraham Lincoln.
Today, President Biden is once again being called upon by his supporters to declare a national emergency on climate change. Rather than argue for or against it, in this post I’m going to explain the history of such declarations, what recent experience says about their effectiveness in policy, and suggest the three questions we should be asking instead.
A national emergency declaration may be a political end, but it is also supposed to be a policy means — a mechanism intended to achieve certain outcomes in the national interest. Apart from the politics of using an emergency declaration to signal affinity with certain political interests, below I recommend the policy questions that we should be asking instead.
In 1866, in the case of Ex parte Milligan, the Supreme Court argued that the Constitution allowed sufficient room for the government to deal with existential threats, and that the invocation of additional authority by the president beyond that already granted by the Constitution was unnecessary and a bad idea:
“The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence”
Even so, in the century that followed this ruling the invocation of emergency powers by the president expanded dramatically, especially under the administration of Franklin Roosevelt and then during and after World War 2.
In the 1970s, Congress viewed the presidential assertions of emergency and the corresponding expansion of presidential powers to be problematic from the standpoint of the balance of powers between branches of government. The Senate observed in a 1973 report that the country was then under four declared emergencies that were being used to implement 470 different administrative statutes.1
The Senate expressed concern that these emergencies justified a wide range of extraordinary and problematic presidential authority:
Under the powers delegated by these statutes, the President may: seize property; organize and control the means of production; seize commodities; assign military forces abroad; institute martial law; seize and control all transportation and communication; regulate the operation of private enterprise; restrict travel; and, in a plethora of particular ways, control the lives of all American citizens.
Congress sought to limit these seeming unchecked executive powers via the National Emergencies Act of 1976 which was signed into law by President Gerald Ford. The legislation established more formal legal guidelines for the use of emergency powers by the president and created a mechanism for Congress to force the end of a particular declaration, in an effort to rein in the expansion of executive authority.
Since that time the U.S. president has declared 69 emergencies, and since the Clinton Administration the practice has become fairly common, as you can see in the table below from the Congressional Research Service. Currently, the U.S. has 42 active national emergencies in effect, the oldest dating to the Carter Administration and the Iran hostage crisis. Emergency declarations continue remain in effect that were declared by all presidents since Carter except Ronald Reagan and George H. W. Bush, meaning that if a current president declares a national emergency, then it is likely to be around for a while.
Since President Carter, Democratic presidents have declared 37 national emergencies and Republican presidents declared 32. The Clinton Administration declared the highest number of emergencies, with 15, but the GW Bush, Trump, and Biden Administrations issued more per year in office. To date, President Biden has declared eight national emergencies.
