Sunsets and Emergencies

The recent Supreme Court case over tariffs and whether they were authorized by the International Emergency Economic Powers Act has got me thinking about emergency powers in general. I think most people would agree that there are legitimate emergencies when the executive branch (whether state or national) needs to take action immediately, and it would be to the citizens’ detriment if we had to wait for the legislature to assemble and plot out a course of action. One problem, though, with acts that give the executive emergency powers is that “emergency” is typically undefined. Which makes sense, because an emergency is something dramatic that people weren’t expecting. No matter how many examples of emergencies you might list, what if there is an attack by Godzilla? Or, somewhat more realistically, the Yellowstone supervolcano blows up without warning. So these things are left vague, with the hope that the executive will not abuse the authority.

But what happens when an executive doesn’t care very much what other people think is and is not an emergency? He or she can send a few government lawyers to scour through all the emergency statutes and find some semi-plausible excuse to do the things he or she always wanted to do, but the legislature does not. That’s the tricky part: when the very person who gets to use emergency powers also gets to define what constitutes an emergency.

In the case of an executive branch exercising emergency powers that the legislative branch doesn’t approve of, the legislators could theoretically withdraw said power. But we don’t live in Theoryville, we live in reality. When Congress or your state legislature offers to give power to the executive branch, very few presidents or governors are going to veto that legislation. When the legislature passes a bill to withdraw emergency powers, that is practically always going to be vetoed. Maybe a President Rand Paul or the ghost of Calvin Coolidge might sign such a bill, but precious few others would. And very few vetoed bills are able to muster the votes for an override. Maybe it can happen in some states, but at the national level, we are definitely in an era when almost everyone in the president’s party – Democrats or Republicans – would rather eat poison ivy than vote to override a veto from the leader of their party.

So, we’re stuck with the emergency provisions that are already law, but surely we ought to be able to do something better in the future, right? Well, there is a safety valve that could be applied to future emergency acts. My proposal (and I’m sure lots of legislators at the state and federal level are reading this, right?) is that any future bills granting emergency powers to the executive branch have a sunset provision. Make it 2, 3, 4 years or whatever. Definitely a low number, though. If Congress or your state legislature does not vote to renew the statute every few years, it expires. It’s the most practical way I see to rein in an executive who has little respect for what the rest of the state or nation considers to be a true emergency.

Salt Lake City sunset