The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Federalist Society recently posted the video of an online panel entitled "What are the Limits of Executive Emergency Powers." Participants included Elizabeth Goitein (Brennan Center, NYU), Daniel Dew (Pacific Legal Foundation), and myself. The panel was moderated by Ilya Shapiro (Manhattan Institute), who is a different person from me.
As is to be expected with this ideologically diverse group (Goitein, for example, is well to the left of me, while the "other" Ilya is somewhat to my right), there was disagreement on several issues. Nonetheless, we did agree that emergency powers have been seriously abused by presidents of both parties in recent years, and that we need stronger constraints on their use—both legislative and judicial.
Examples of such abuse include Donald Trump's attempt to use emergency powers to divert military funds to his border wall project, the CDC eviction moratorium and Title 42 "public health" expulsions (both begun by Trump and continued by Biden), and—most recently—Biden's effort to use the Covid emergency as a justification for forgiving hundreds of billions of dollars in student loan debt. We should not let partisan bias stand in the way of recognizing the scale of this problem, and the reality that it is not limited to any one president, or to one side of the political spectrum.
I have embedded the video below: