Episode 52: State of Emergency

Natural disasters, civil unrest, widespread epidemics - these are just some of the unpredictable events that cantrigger a President or Governor to declare a special "state of emergency". But what exactly does that mean? Is it symbolic, or logistical?  What emergency powers does this special designation authorize?  Our guide this week is Kim Lane Scheppele, author of Law in a Time of Emergency. 

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[Virginia Prescott] Let's clarify first that the declaration from the president was one of an intention to declare a state of emergency, it has not yet gone through the official process. So what is that official process for declaring a national emergency?

[Kim Lane Scheppele] Well there actually are several processes for the president to declare a national emergency. There's one process that is regulated by a law called the National Emergencies Act which gives him all kinds of powers in domestic law that he would not otherwise have. And that's what Donald Trump was, I think, pointing to when he sort of declared, but didn't actually legally declare, a state of emergency for the opioid epidemic.

There's another kind of state of emergency that presidents can also declare, and that's one for international emergencies. And that's under the International Economic Emergency Protection act. And under that Act the president can designate certain individuals and organizations for sanctions; that they can't receive certain kinds of materials or funds from the United States for example.

And the President has declared several of those in recent weeks against various foreign enemies or foreign agencies that the U.S. wants to pressure in a particular way including, for example, some organizations and individuals who have been providing support to the North Korean government.

So if you look at states of emergency in the U.S., at any one time there are 40, 50, 60, states of emergency going on at once, and you might be kind of confused by that because you know you walk down the streets and there's no tanks in the streets; doesn't look like a country under emergency. But that's the legal label for the president to actually invoke these very special powers that he's been given by Congress.

[VP] Let's get into that a little. The powers granted to the president alone. So Congress does not have to approve or keep in check declarations of emergency?

[KLS] Well it used to be the case, if you go back far enough in American history, presidents would just declare emergencies on their own. And then after President Nixon did that a couple of times as he was facing impeachment, Congress got a little bit nervous about exactly what presidents can do especially when investigations are closing in on them and the president seems to have no limits on the way the president can, shall we say, hold off those kinds of investigations. So back in the 1970s Congress developed a series of laws that actually regulate presidential emergency powers. So Congress has to give the president permission to declare an emergency of a certain type.

This is how we get these two different kinds of emergencies: the national ones and then these international ones. So those are regulated under different frameworks. So it looks like Congress has kind of reigned the president in, which you know not a bad thing if you've got an out-of-control president. The problem is the reigning in is not very serious. The president whenever he thinks it's justified, can declare a state of emergency and then use powers that Congress has scattered throughout the laws to address the crisis.

And there is something like, last count, 400 to 450 different laws, this is just at the Federal level, that give the president particular kinds of powers that he can use if he actually first declares a state of emergency.

[VP] Well let's go through that, like, what gets triggered? What does it mean when a national emergency is declared? You mentioned tanks rolling. What happens?

[KLS] Yeah well, you know, we don't really usually have tanks rolling in the street during emergencies. Instead, emergency powers are used to override laws that would otherwise normally have effect. And actually it's also used to override some constitutional provisions that would otherwise have effect. So, for example, you know presidents all the time declare national disasters or emergencies if there are hurricanes, floods, giant snowstorms, you know, various kinds of weather related emergencies...earthquakes would be another example. And when the president declares emergency powers, what the president can usually do, is to take money that's been allocated for other purposes and redirect it to deal with the crisis that the country is facing at the moment.

Constitution 101 says that Congress must appropriate funds for specific uses. And so here you've got a case where the president sort of overrides that and takes money Congress has put aside for one purpose and uses it for another purpose. Now you'd think that would violate the Constitution but that's never actually been challenged before any court in the U.S. So everyone is acting like this is a perfectly constitutional arrangement even though the main thing these emergency powers do is to redirect funds that Congress had appropriated for other purposes.

[VP] So frees up federal disaster funds or other funds for affected communities let's say, allow federal agencies maybe to waive some rules or regulations to respond--


[VP]--But how about civil and constitutional rights? Can they be revoked under declarations of national emergency?

[KLS] That's so interesting, so yes, certain laws the president actually has the power, for example, to call out the National Guard to deal with emergencies and to deploy even some military forces. Once that happens, then of course you can also find with it things like curfews or preventive detention. We actually saw this with the outbreak of these various kind of diseases that come into the U.S. with U.S. carriers and then those people are quarantined for a while. That's a different kind of emergency power where suddenly somebody's civil liberties are suspended and they have to spend time in a hospital for a while.

So yes I mean you can get, you can get military in the streets calling curfews, you can get different kinds of rules for stopping and searching vehicles, you can get different rules for stopping and searching individuals. So all of those things are weirdly legal under states of emergency. Because what Congress has done is to provide this whole catalog of alternative legalities, so to speak, alternative legal powers that the president can invoke as long as he first says the magic words: "I declare a state of emergency."

[VP] And can they be declared indefinitely or is there a stipulated time limit on an emergency?

[KLS] There are limits. The president has, at most, 12 months to have a state of emergency before it has to be renewed. But it turns out to be extremely easy to renew it and you can renew these states of emergency indefinitely. So for example after 9/11 George Bush declared a state of emergency. And this one--again you have to declare the state and then list the kinds of things you're going to do--and he could have done a whole bunch of things. After 9/11 everybody was panicked and would have put up with quite a lot of emergency powers. But instead he invoked a relatively modest set of powers that allows him to change the number of soldiers in the military, to sometimes extend their terms of duty, to sometimes refuse to allow them to retire or leave at the end of their terms if they're needed. In other words it was a set of powers that had to do with his role as commander in chief.

So that was declared right after 9/11 and every year since that time, the president whoever the president is, signs the continuation of that declaration of emergency. So we're still--these are time limited but the time limits are, shall we say, not terribly binding.

[VP] Well we're talking about federal declarations. Let's go back to our original question which was about also the declaration made by the Virginia Governor Terry McAuliffe on the day when white nationalist demonstrators clashed with counter-protesters in Charlottesville. So what happens when an emergency is declared in a state?

[KLS] Well this now depends on state law so and every state has their own law for regulating this, so let's just take Virginia because that's where this emergency was declared for Charlottesville. There you actually have an executive order that came out from the office of the governor. He cites this law that allows him to declare a disaster and the state of emergency and then he says what authority he's invoking. Now there's a different problem with the executive order for the governor of Virginia. Right?

So we've we've seen already that Trump's declaration of an emergency actually wasn't a declaration of an emergency. It was a one sentence press release that accomplished absolutely nothing. So there is no emergency at the national level for the opioid crisis despite what everybody reported in the press. No legal statement.

In Virginia there is a legal statement that there is a state of emergency, but it's a very long executive order. It goes on for pages and pages. In fact it goes on for seven single spaced pages and it gives the governor all kinds of authorities that are not really particularly related to what happened in Charlottesville. So what it looks like to me is that they must have some kind of boilerplate. They have a generic emergency declaration sitting around, that the government pulls out to sign and that declaration isn't particularly tailored to fit the particular emergency of Charlottesville.

For example let me read you one, just one sentence. It overrides the rules that quote: "grant temporary overweight, overwidth registration or license exceptions to all carriers transporting essential emergency relief supplies." That would be relevant if you had a flood or you had some kind of other weather related disaster, an earthquake or something. But for civil unrest you usually don't need to transport major amounts of emergency supplies in super large trucks. Right? They literally gave the governor in this emergency declaration every single emergency power, I think,that he was authorized to have under state of Virginia laws whether it was relevant or not.

[VP] Yeah I looked at that and there are sections about transporting hazardous waste. The feeding of livestock. But I'm wondering about the optics and the symbolism of declaring a state of emergency. Is declaring a state of emergency about messaging?

[KLS] Yeah so messaging is a big part of these states of emergency. It sort of says the executive is in charge, the executive is acting, the executive is efficient and doing something. And this may put the U.S. in a very special category of countries worldwide. In most countries when a state of emergency is declared it doesn't make people feel better, it makes you nervous about what the government is going to do. So the fact that governors and presidents can use states of emergency to comfort people or to show that somebody is acting as they should be is really a kind of testament to the American system of government. At least up until the point where it stops working. Right?

So and this is really where my concern comes in, is that emergencies are so routinely declared in the U.S., and they are so routinely used for this kind of messaging purpose where they're designed to say, you know, yes we're handling things, that we forget that they really are exceptions to normal law and in some cases they really are truly extraordinary exceptions to that--to regular law. We shouldn't be comforted by the sheer number of states of emergency that exist at any one time in the United States. Surely if this is a routine problem, you know you have some natural disaster and you have to get relief supplies across  roads that otherwise would be closed or you know something of that kind.

There's got to be some way we can handle that short of a generalized suspension of normal law. Because if you had a really, you know, a really major states of emergency which is to say, massive civil liberties violation, tanks in the streets, you know, all the kinds of things we associate with rogue government, for example, we wouldn't really have a way to theoretically distinguish it or to actually bring legal resources to bear to check it because the legislatures in the states and Congress at the Federal level, have basically assumed that they're always going to have good governors and good presidents who will stay within the limits of the law.


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