A ‘Climate Emergency’ Declaration Would Set Alarming Precedent and Must Be Avoided

July 28, 2022 Updated: August 1, 2022

Commentary

In a speech given to his most ardent allies and climate activists in Somerset, Massachusetts, on July 20, President Joe Biden asserted: “Climate change is literally an existential threat to our nation and to the world. … This is an emergency, an emergency, and I will look at it that way. … As President, I’ll use my executive powers to combat the climate crisis in the absence of congressional actions.”

Though Biden has thus far abstained from formally declaring a national emergency, this becomes more likely by the day. Such a declaration would amount to an end-run around democratic processes and would have dramatic consequences on the integrity of our democratic institutions, further eroding the capacity of the legislative and judicial branches to provide a meaningful check upon an already powerful executive branch. Moreover, it would set an alarming precedent for future arrogation of power under future administrations.

Yet the activity surrounding declaring a climate emergency is just one microcosm of a much larger problem.

When presidents declare national emergencies, they unlock an arsenal of expanded powers; drawing from work conducted by the Brennan Center for Justice and the Congressional Research Service (pdf), there are 136 statutory authorities within the U.S. Code that become available for presidential use. Concerningly, these powers—many of which are mind-boggling in their scope and potential for abuse—are nearly impervious to congressional or judicial review.

Though Congress had intended to restrain emergency powers via the 1976 National Emergencies Act (NEA), the NEA has both failed in its original purpose and led to the vast proliferation of emergency declarations, many of which have extended for decades. The NEA primarily failed due to two judicial rulings in the 1980s, which ultimately hamstrung Congress’s ability to terminate emergency declarations.

The first ruling—1983’s Immigration and Naturalization Service v. Chadha—found the use of a legislative veto to be unconstitutional, thereby forcing Congress to pass a joint resolution that can be vetoed by the president. As a recent article from the Brennan Center explains: “You can imagine that a president who has declared the emergency will most likely not sign that. They will veto that type of bill. And then you need a supermajority in Congress to override that veto.” Especially in today’s hyper-partisan environment, a congressional supermajority is nearly impossible to attain.

The second ruling—1987’s Beacon Products Corp. v. Reagan—found that emergencies are still legally binding even if Congress fails to meet at the six-month interval stipulated within the NEA. A president need only send an annual renewal notice to the Federal Register, and the national emergency can continue in perpetuity.

Unsurprisingly, presidents have abused this expanded authority with reckless abandon. Since the NEA’s passage, an exorbitant 76 national emergencies have been declared, many of which span decades. In fact, the first national emergency declared under the NEA—“Blocking Iranian Government Property”—has been unilaterally renewed every year since 1979.

More than 40 national emergencies are currently in effect today, including five of the Clinton administration’s, 10 of Bush Jr.’s, nine of Obama’s, 10 of Trump’s, and all seven that Biden has declared in just 18 months on the job.

As mentioned, the statutory powers a president can invoke are substantial and wide-ranging, covering almost every conceivable subject area including the military, public health, trade, agriculture, transportation, communication, property rights, criminal law, land use, contracts, and more.

Specifically, some of these powers include the ability to shut down and take over television and radio stations, restrict travel, seize private property, freeze financial assets, and even suspend prohibitions on testing chemical and biological weapons on human subjects.

Even more concerning, the powers a president can unleash don’t have to be specifically related to the emergency.

As the Brennan Center’s Elizabeth Goitein writes in The Atlantic: “The National Emergencies Act doesn’t require that the powers invoked relate to the nature of the emergency. Even if the crisis at hand is, say, a nationwide crop blight, the president may activate the law that allows the secretary of transportation to requisition any privately owned vessel at sea.”

In practice, emergency proclamations have historically been confined to the foreign policy realm. They are most often used to legally authorize the use of economic sanctions against foreign governments, companies, or individuals, as has been the case in response to Russia’s invasion of Ukraine.

While a president’s unilateral authority to freeze assets and suspend financial activity to any organization he or she chooses does present substantial problems, more concerning is the recent trend toward using emergency declarations to push domestic agendas.

President Barack Obama invoked the national emergency proclaimed in response to the Sept. 11, 2001, terrorist attacks—which still remains in effect today—to eliminate statutory pay increases for federal workers in 2010, clearly reflecting how a declared emergency and the powers that may be invoked can be completely disconnected.

President Donald Trump declared a national emergency at the southern border, working around Congress to reallocate military funding toward constructing his border wall. Despite an unprecedented bipartisan congressional effort to terminate the emergency, Trump vetoed both of the passed resolutions, illustrating the near-total inability of Congress to provide a meaningful check upon executive power.

Ironically, many of the members of Congress who excoriated Trump for overstepping his authority are now the same individuals exhorting Biden to declare a national climate emergency. This is not only immensely hypocritical, but also a blatant abdication of these elected leaders’ constitutional duty to limit the executive branch.

A climate emergency declaration could hypothetically be used to:

  • seize farmland on behalf of the federal government (under Title 7 of the U.S. Code)
  • direct the military to construct green-friendly infrastructure (Title 10)
  • direct federal agencies to use noncompetitive procurement procedures, executing contracts with only “climate-friendly” companies (Title 41)
  • impose a ban on crude oil exports (Title 42)
  • make direct federal loans to green energy companies with no spending cap (Title 50)
  • allow the Department of Transportation to curtail or restrict automobile or truck use (Title 49)

And that’s just a small selection of the ways in which Biden could respond. Though unlikely, he could technically even censor media outlets that sponsored any climate-skeptic dialogue, implement economic sanctions upon individuals or companies friendly to the fossil fuel industry in the name of national security, and seize any ships transporting fossil fuels in federal waters, among many other methods.

To be clear, a declaration of a climate emergency—regardless of whether one believes that such an emergency exists in the first place—would give the president substantial means by which to expand executive power. Moreover, it would further erode the viability of Congress as a co-equal branch of government. Finally, it would set a disturbing precedent for future presidents to use national emergencies to solve whatever crises they unilaterally deem important, with no input from Congress, or the people.

That is how dictatorship begins and democracy dies.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Jack McPherrin is research editor at The Heartland Institute.