Last week, Sen. Bernie Sanders (VT), Rep. Alexandria Ocasio-Cortez (NY), and Rep. Earl Blumenauer (OR) introduced a bill to require President Biden to declare a national emergency for the purpose of addressing climate change. The measure is well-intentioned, but it reflects a profound misunderstanding of how national emergencies work.
In short, the bill wrongly links a national emergency declaration to a host of goals that can’t be accomplished with emergency powers. Achieving many of these goals requires Congress to pass new legislation; this measure is an attempt to pass a buck that simply can’t be passed. Suggesting otherwise is harmful in two ways. It plays into dangerous misconceptions that emergency powers have no limits, and it lets Congress off the hook for providing the authorities and funding the president actually needs to address climate change.
Let’s start with some basic background. A declaration of national emergency doesn’t give the president whatever powers he believes necessary to address a crisis. Instead, it unlocks specific authorities contained in more than 130 statutory provisions that Congress has passed over the years. Most of these provisions become available during a “national emergency,” whether declared by the president or Congress. That raises a threshold question: why should Congress direct Biden to declare an emergency rather than declaring one itself?
More fundamentally, the bill doesn’t identify the specific emergency provisions that Biden is supposed to use. Instead, it presents a long list of goals Biden should achieve with those provisions. As someone who considers climate change an existential threat, I strongly support all of those goals. The problem is this: exceedingly few of them can be accomplished with the authorities Congress has made available for national emergencies. Of the scores of powers available during a national emergency, you can count on one hand (plus or minus a finger) the provisions that have any relevance to climate change. And even those powers don’t get you that far, as I recently explained in the Washington Post.
Yes, Biden could pause the export of crude oil and suspend leases for offshore drilling (assuming Congress allocated sufficient funds to compensate leaseholders, as the law requires). But that doesn’t scratch the surface of what the sponsors of this bill are asking for. You can scour the Brennan Center’s comprehensive listing of powers during a national emergency, and you won’t find a provision giving Biden the authority and funding to “modernize and retrofit millions of homes, schools, offices, and industrial buildings.” Nor does any of those provisions enable Biden to “establish new employment programs,” to “develop and transform the industrial base of the United States,” or to “create new public sector institutions, inspired by and improving upon New Deal-era institutions.”
To be sure, some of the goals identified in the bill could be achieved by executive policies that do not require any new legislation. For instance, the bill directs Biden to prioritize racial and social justice and to avoid pursuing climate change solutions that would increase inequality. But no emergency declaration is needed for those actions.
If the sponsors of this bill want Biden to accomplish all of the listed goals, Congress must pass authorizing legislation and appropriate funding. On the issue of climate change, at least, a national emergency declaration doesn’t provide a magical shortcut. And while I’m deeply grateful to Sanders, Ocasio-Cortez, and Blumenauer for their passion and longstanding leadership on this issue, I think they may have done the cause a disservice on this occasion by signaling that Biden can achieve the goals specified in the bill with an emergency declaration. That not only sets Biden up for failure — it lets Congress off the hook.
More specifically, some members who would like to avoid hard votes on funding and authorizations relating to climate change might be willing to support a bill that essentially says, “You deal with it, Biden.” This bill gives them cover. After all, if the leading champions of reform within Congress think emergency powers can accomplish all of these goals, why should any further action by Congress be needed?
I’m not naïve. I’m aware that Congress is full of climate change deniers and members whose campaigns are bankrolled by oil companies. Getting Congress to act on this is going to be difficult, and it could take time we can ill afford to lose. But the solution isn’t to pretend that a national emergency declaration gives the president powers he doesn’t have. That just takes the pressure off Congress without giving the president the tools he needs.
Finally — and just as important — the bill reinforces a common misconception that statutory emergency powers give presidents a kind of legal carte blanche. The only way Biden could accomplish the goals in this bill using existing emergency powers is to stretch them beyond all recognition, using them in legally dubious ways Congress never intended. That’s something we saw Trump do on more than one occasion. As we learned during his administration, the idea that emergency powers are infinitely malleable is both false and dangerous. It’s not a notion that lawmakers should be perpetuating, no matter how laudable the goal.
This piece was adapted from a Twitter thread.
