If You Care About Democracy, Don’t Ask Biden To Invoke Emergency Powers

For a president of the United States, seeing policy initiatives thwarted by congressional resistance and divided opinion must be a lot of things, frustrating chief among them. But not getting your way because people won’t get with the program is not an emergency. Unfortunately, we live at a moment when many Americans have lost patience with the trade-offs of democratic checks and balances and would really prefer to live under an absolute dictator, so long as a fearless leader champions their causes. And the favorite cause of the moment among supporters of President Joe Biden is environmental policy, which many want him to implement over opposition through emergency powers.

“Invoking a national emergency over climate change would enable President Joe Biden to unleash sweeping actions to restrain greenhouse gas production — such as banning U.S. crude oil exports, ending offshore drilling or speeding the manufacturing of electric vehicles,” Politico‘s Alex Guillen and Ben Lefebvre reported last week of pressure the president faces to invoke emergency powers and hints he’s dropped of doing just that.

“Climate change is literally an existential threat to our nation and to the world,” Biden commented July 20 at the Brayton Point Power Station in Massachusetts. “So my message today is this: Since Congress is not acting as it should — and these guys here are, but we’re not getting many Republican votes — this is an emergency.”

Biden used the word “emergency” without formally invoking emergency powers in an obvious nod to the likes of the Democratic senators who openly called on him to “boldly, declare this crisis the national emergency that it is, and embark upon bold regulatory and administrative action.” A similar letter was sent from members of the House.

Like Biden himself, the lawmakers blamed the lack of action on their preferred policies on failure to gain passage in Congress. But policy proposals fail in legislatures all the time; that’s how the process works. Losing a vote is democracy, not an emergency. The Congressional Research Service (CRS) delved into this issue just three years ago when it examined the scope of emergency powers.

“There are at least four aspects of an emergency condition. The first is its temporal character: An emergency is sudden, unforeseen, and of unknown duration. The second is its potential gravity: An emergency is dangerous and threatening to life and well-being,”  the report said. “The third, in terms of governmental role and authority, is the matter of perception: Who discerns this phenomenon? The Constitution may be guiding on this question, but it is not always conclusive. Fourth, there is the element of response: By definition, an emergency requires immediate action but is also unanticipated and, therefore, as [co