A while back((I just came across the piece yesterday.)) Tom Moran of the Star-Ledger/NJ.com published an editorial (which in turn relies substantially upon an analysis by Elizabeth Goitein of the Brennan Center for Justice) saying that President Biden should not, as urged by a number of senators, including New Jersey’s Cory Booker, declare an emergency in order to take action on climate change that Congress will not.
Both Moran and Goitein cite President Trump’s misuse of emergency power to reallocate government spending to his border wall as an example not to be followed. Goitein writes:
[The] purpose [of emergency powers] is to give presidents a short-term boost in power in situations that Congress cannot have foreseen (because they arise suddenly and without warning) and that Congress is ill-suited to handle (because they require immediate or highly nimble responses). Emergency powers are not intended to address longstanding problems, no matter how serious. Nor are they meant to authorize permanent or long-term policy solutions that Congress itself could provide but has chosen not to.
This position is consistent with the opinions I have expressed regarding COVID-19 and emergency powers here, here, and here. “Emergency” does not mean the same thing as “urgent.”
From my observation, it is increasingly uncommon for those who feel strongly about an issue to separate the merits of a particular policy from the power of a supportive official to implement that policy.((For example, in the early days of the COVID pandemic, Bergen County Executive James Tedesco ordered all malls in the county to close until further notice in order to prevent the spread of the disease. When asked about his legal authority to shut down private businesses, Tedesco responded: “I have the moral authority.” NJ coronavirus: All Bergen County malls must close (northjersey.com). Because Tedesco’s closure order was quickly subsumed by Governor Murphy’s, the question of legal authority was never authoritatively tested.)) As I wrote a few months ago, in response to the United States Supreme Court’s ruling West Virginia v. EPA that Congress did not grant EPA the authority to devise emissions caps based on the generation shifting approach the Agency took in the Clean Power Plan, two former EPA officials took the editorial position that in lieu of democracy regulatory authority should properly be vested in administrative agencies “staffed by experts.” “In the absence of specific statutory language to the contrary, deference would be given to each agency in defining the scope and limitation of its power, its range of activity, and the interpretation of the statutes it administers.”
Democracy is inefficient and sometimes gets it wrong, but it’s the best form of government we have.((Winston Churchill is often mistakenly quoted as saying: “Democracy is the worst form of government, except for all the others.”))
Jay Bohn
September 12, 2022