Video of Federalist Society Panel on "What are the Limits of Executive Emergency Powers"

The panelists included Elizabeth Goitein (Brennan Center, NYU), Daniel Dew (Pacific Legal Foundation), and myself.

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:

Comments

[Armchair Lawyer]

Arguably, the state level executive powers overreach was far greater than that of the federal government.

A large piece of me is grateful that Democrats didn't control the executive branch during 2020. Given their extreme emergency authorization usage on a state level, if they had controlled the national government, it may have been a civil rights disaster.

[Mr. Bumble]

Agreed on state level executive action and because of that we have had a "civil rights disaster" which continues in some areas and could pop up again more generally at any time.

[BravoCharlieDelta]

It wasn't a civil rights disaster?

[Krayt]

If Trump did anything right, it was refusing to take on emergency powers of the types states' governors did. Instead just recommend and let them handle it.

No national dictator. Free societies, democracies, anything remotely like them, collapse when the legislature grants the exec, general, whoever, emergency powers, and they never give them back.

Ancient Greece and Rome, 1930s Germany, more recently Venezuela, Turkey.

Some of you are the cheering when Padme said, "So this is how Liberty dies, with thunderous applause." You think you stand against potential tyranny, but you are greasing the wheels.

[Sarcastr0]

How quickly you forget the wall.

Or Trump’s constant ignoring of Congress.

“ Then I have an Article 2, where I have the right to do whatever I want as president”
No national dictators indeed,

[Michael P]

How quickly we forget using national defense construction budget to construct border security infrastructure?

That's weak whataboutism even by your standards. Trump merely followed the example set by Mr "I've got a pen and I've got a phone" in working around Congress. He used executive rulemaking to make rules that controlled the executive branch, in sharp contrast to his predecessor and successor.

[Brett Bellmore]

Very much "One of these is not like the others". While Trump diverting national defense spending to buy border wall was abusive in the sense any spending on something Congress had refused to fund would be abusive, it wasn't illegal abusive, because the NEA is an actual law, and actually did authorize those sorts of diversions.

The other abuses discussed didn't have the solid statutory basis Trump's wall diversion had.

[Michael D]

What I find problematic with all executive overreach is the justification for it by partisans. In other words, if a Republican president oversteps, Republicans will justify the overstep. The same is true of Democrats, of course.

This is problematic because I fail to see the barriers the Founders put in place working. For example, Biden’s student loan forgiveness hinges not on the question of whether it is constitutional but instead on standing. The other remedy the Founders repeated many times in The Federalist Papers is the people who they thought would not stand for such usurpations. But that has never been true. The Biden student loan example is one where voters really have little say. For the recipients, they would not care one way or the other about the Constitution so long as they are beneficiaries of the action. We could review the history of government as Santa Claus on that question.

When the courts cannot or will not stand against an unconstitutional overreach by the executive, and a politically aligned Congress sides with the overreach, and a majority of voters are happy to accept the financial fruits of the overreach, then in fact, there could be nothing to prevent the executive from usurping power.

Throughout history we see this manifest itself in an all powerful executive who keeps the masses happy with their freebies. Anyone who stands in the way comes to be seen as an enemy of “the people”. This includes legislators and judges who would oppose the executive.

This has to be seen as both tyrannical as well as a usurpation of power. Frankly, our Constitution lacks the mechanisms to prevent this. I am not sure how to prevent the decades long path of continued executive overreach which could lead to an outcome such as I describe.

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I can think of several measures which would slow it down, all related to making it easier to repeal laws.

* Allow Congress to repeal laws without needing Presidential approval.
* Heck, allow either chamber to repeal any law by simple majority vote.
* Include executive orders and all agency regulations.
* Don't allow any agency regulations, period, since that is as good as legislation and resides in Congress only.
* Allow states to repeal federal laws, executive orders, and agency regulations, by a simple legislature majority vote; governor approval or not is not important.

[Michael D]

Some of those items need amendments to the Constitution to be enacted. Not all of course. Some only require legislative actions. The last item is basically the nullification argument, which I fully endorse. Marijuana decriminalization/legalization, eg, has been and continues to be a resounding success for the nullification idea.

Because it is in the news now, I refer to Biden’s debt forgiveness as an example of a policy which I do not believe any of your remedies could prevent.

However, I definitely appreciate your response as it provides a light at the end of a tunnel.

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[Kazinski]

I hope the lesson won't be lost that the two governor's of purple states that were the most prominent at proclaiming they were not the people's boss and could not restrict their freedom during the pandemic have turned their purple states much redder.

I'm speaking of course of Kemp in Georgia and DeSantis in Florida. Both of whom will be reelected handily after squeaking into office 4 years ago. And of course there is also Abbott in deep red Texas.

In contrast their are several Lockdowns today, "Lockdowns tomorrow, Lockdowns" forever governor's that are unexpectedly struggling in their reelection bids and could end up losing Tuesday, such as Whitmer, Hochul (incumbent but not elected), Grisham, Sisolak, Walz, and Evers.

Now I'm not saying this is the only factor in any of these governors elections, or even the most prominent one, but I think it will be a factor.

[Michael Masinter]

Emigration (from midwestern red states to The Villages and to pre-Ian southwest Florida) and deaths (ageing elderly northeasterner liberals who retired a generation ago) have done much more to turn Florida red than DeSantis and his policies. And add to that the overall incompetence of the state democratic party. But there's no question that Florida has moved from a so-called battleground state to a red state. That's democracy at work.

[Ben_]

We saw during the pandemic that these guys can basically do anything they want as long as courts are willing to stall the process of reining them in. As the months and years pass, a few courts finally decide that they will go back to the idea that laws and rights matter again.

So, on short time horizons, executive powers are not limited by laws. They're limited by venue shopping and judges' personal preferences.

On long time horizons, there are no long term emergencies because of the definition of the word "emergency".

The system is not setup to protect rights in an "emergency". Hopefully we can get some systemic reforms if elections go against the pro-emergency people in 2022 and 2024.

[MatthewSlyfield]

"Hopefully we can get some systemic reforms if elections go against the pro-emergency people in 2022 and 2024."

There aren't any anti-emergency people on the ballot to vote for.

[Ben_]

Not a single one on any ballot in any state or town? Did you check them all? (No.)

(Why do people say things like this? No one is impressed.)

[Kazinski]

Jensen is running against Walz in MN, Michels against Evers in WI, and Tudor Dixon against Gretchen Whitmer who was one of the worst emergency abusers.

All of those races are going to be close.

[santamonica811]

Ben and Kaz,
Who is running on this as a major point in his/her campaign? For it to be so, the candidate must have been saying, while running, (1) Trump was really wrong and really bad, when he did this re building the wall, AND (2) Biden was really wrong and really bad, when he did this re student loan relief."

I don't care about a politician whining about Trump while ignoring Biden's actions. (Nor, of course, one whining about Biden while ignoring Trump.) Because those people--let's call them 'typical politicians' for short--are absolutely *not* anti-overreaching executive power...they're merely against it when the other party does it. How many candidates can you highlight for us who has taken a consistent and public stand on this issue? Maybe you have a few in mind. But I think that Matt was saying (not to put words in his mouth) that there are *essentially* no such candidates for us to vote for. Over- or under-inclusion hyperbole is a fairly common rhetorical device.

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[BravoCharlieDelta]

Fortunately for the tyrannical Federals, COVID is the emergency that will never end. They will always be able to use that. Same with the AGW hoax. That's why they're clamoring to use that as an emergency, and that clamoring has only quieted because they have a suitable candidate for their tyranny.

[Zarniwoop]

Def. agree that "emergency powers", unrestrained, is a threat no matter where one is on the political spectrum ...

[Daddyhill]

I suggest that a good place to start would be the War Powers Act Enforcement Act (HR 2108). President after president has ignored or abused the original War Powers Act, claiming that it is unconstitutional and a dangerous infringement of the president's Article II responsibilities as commander-in-chief. Since 1945 Congress has meekly ceded its Article I power to declare war and provide the funding for America's wars, too many of which have lasted far longer and at enormously greater cost in lives and treasure than promised by the Executive Branch. Few would have held during the cold war years that the president lacked the emergency authority to respond quickly to a Soviet nuclear attack. He/she still has that authority to respond to a true conventional or unconventional attack on the US or our allies until Congress can meet to declare war and vote for necessary funding.

[santamonica811]

Daddy,
Why do you think this is? (And I agree with your premise.) My own thought is that members of Congress tend to be political cowards. They are almost universally interested in either staying in their seat, or, in moving on to even more powerful political roles. So, even though there is likely a HUGE consensus on this issue for both Republicans and Democrats, they all don't move to change things...as that would certainly lead to difficult votes that they'd be on the record for.

This is an issue that obviously has been brought up many many times before--in liberal and conservative media. I'm a bit surprised (and dismayed) that there's be essentially zero movement on this in all the years since we went into Afghanistan.

[Commenter_XY]

I tend to agree as well. Get the answer = War Powers Act

In the video, there was discussion of sponsoring legislation at the state level to require a Legislature to vote on an Executive Order issued by a Governor within a time certain. That is a reform worthy of consideration, to me. Maybe not just at the state level, either.

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