That most Americans could live in a “national emergency” for 40 years without noticing says something about the broad—some would say insidious—expansion of emergency powers. The United States has ongoing emergencies for everything from unrest in Burundi to the movement of vessels near Cuba. It’s not that Cuban maritime malfeasance will end in U.S. martial law, or even that Clinton was invoking the same kind of emergency Trump has flirted with to fund his border wall. But the basic legal concept—an emergency allows the president to exercise powers not otherwise granted to him by Congress—is common to all these scenarios.
Who really cares, you might ask? There’s still terrorism in the Middle East, and still no diplomatic relations with Iran, and emergencies invoked in contexts like this allow the president to impose sanctions even if the legislature hasn’t gotten around to it. Another ongoing national emergency, first issued under Trump, declares that foreign corruption and human-rights abuses threaten U.S. national security. Why wouldn’t you want to combat corruption and human-rights abuses?
But many of these issues are probably more accurately described as a “state of problem” rather than as a “state of emergency.” The common-usage meaning of emergency as something sudden, extraordinary, and, above all, temporary should be an important prerequisite to letting the president bypass Congress. It’s useful for the executive to have access to emergency powers in cases, say, when the legislature doesn’t have time to pass a law to help deal with an immediate, genuine threat or natural disaster. Over time, though, it undermines constitutional safeguards to keep giving the president extraordinary powers in circumstances that have long since become ordinary.
“States of emergency that last decades are not only a linguistic oxymoron,” Fionnuala Ní Aoláin, a professor at the University of Minnesota Law School who serves as a special rapporteur on countering terrorism to the United Nations Human Rights Council, told me. “They function to degrade the rule of law, often consolidate executive powers imperceptibly but distinctly, and more broadly loosen the boundaries between the normal and the exceptional.”
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Kim Lane Scheppele, a Princeton professor who has also studied states of emergency, put it another way. There are more than 100 laws on the books with language built in allowing the president extra latitude or exceptions in cases of emergency—extending far beyond foreign-policy sanctions powers, such as those in Clinton’s 1995 declaration, and into domestic issues such as, say, deploying the National Guard and federal funds to help with hurricane relief.
“There are some just perfectly sane things that you could only do” by invoking emergency powers, Scheppele said. Yet she noted that there is also the potential for grave abuse, and that case studies around the world suggest “emergencies” can start small and grow severe—even to the point of ending up in authoritarianism, as in Venezuela and Turkey.