The Emergency Power Shift – by Andrew Egger
A frequent obstacle to the passage of good governance legislation is perverse incitement. Fighting abstract dysfunctions can win bipartisan support, but fighting dysfunctions that benefit your party is a tough sell. Consider how the Democratic emergency powers hawks reacted to President Joe Biden’s student debt cancellation jubilee.
In 2019, a significant bipartisan appetite for legislation to curtail the president’s emergency powers has grown. That’s when President Donald Trump tried to use those powers to fund his border wall after Congress refused to take the money. The 136 emergency powers in federal law exist to allow the president to temporarily assume the prerogatives of Congress in crises where time is of the essence. But as the situation at the border wall has shown, a single rickety mechanism — a two-thirds veto vote in both chambers — limits the president’s ability to declare almost anything he deems important a national emergency. This massive loophole allows an unscrupulous executive to bypass Congress and act alone on a range of issues.
In 2019, Republican Sen. Mike Lee’s ARTICLE ONE Act proposed to overturn the National Emergency System, with emergencies automatically expiring after a short period of time unless Congress votes to extend them. A number of Democrats, with Trump’s border wall action leading the way, have joined the effort. In the current Congress, Democrats have been the main driving force behind these reforms, successfully incorporating them into Rep. Adam Schiff’s Protecting Our Democracy Act, which past the House last December. (It has not yet been put to a vote in the Senate.)
In June, a bipartisan group in the House introduced similar language as an amendment to must-have legislation, the National Defense Authorization Act of 2023 (NDAA). Although the Rules Committee ultimately decided not to put the amendment to a vote, this decision underscored this point: this was apparently a group of lawmakers genuinely concerned about the ability of the President, under the law to circumvent Congress on issues it unilaterally deemed to be of urgent importance. Representatives Peter DeFazio, Steve Cohen, Veronica Escobar and Elissa Slotkin joined Schiff as Democratic co-sponsors of the NDAA amendment.
During Trump’s 2019 border wall fight, each of those lawmakers had specifically challenged Trump’s reckless invocation of emergency powers. From Fazio decried Trump’s “unconstitutional power grab”. Cohen warned that it “threatens the Constitution’s separation of powers”, since “Section 1 gives Congress the power of the purse, not the President”. Schiff insisted Trump “claimed an authority that he does not have” in an act “clearly unconstitutional”. Escobar said Trump had “decided to grossly challenge our system of checks and balances.” Slotkin was more restrained, Express only “deep concerns” about Trump’s “decision to break with historical precedent” and circumvent the “democratic system of compromise.”
Last week, another president, Joe Biden, flexed a different set of national emergency powers, announcing he would wipe out up to $20,000 from the balance of every American with federal student debt. The Ministry of Justice argued Biden had “absolute authority” to do so under the HEROES Act of 2003, which authorized the Secretary of Education to provide debt relief to anyone who “has suffered direct economic hardship as a direct result of war or other military operation or national emergency.” The national emergency, in this case: the COVID pandemic.
It was easily as tortuous a justification as the one provided by Trump three years ago. The clear intent of the HEROES Act was to enable disaster relief in specific cases, not to enact sweeping changes to national debt policy. There is no doubt that the pandemic has generated widespread economic harm, but at no time has that harm disproportionately affected holders of university debt. At the same time, holders of college debt have already experienced a major piece of dedicated COVID relief: the suspension for years of their debt payments, a benefit not granted to holders of other types of debt. Moreover, Congress has already authorized more than $2.5 trillion in expenditures to remedy this harm in several pieces of legislation over several years.
But canceling student debt is a grassroots Democratic issue, so it wasn’t particularly surprising that the party’s former emergency powers hawks overruled their Trump-era qualms in favor of such a thing. answer.
From Fazio“I support Administrator Biden’s federal student loan forgiveness.”
Cohen“Today’s targeted student debt relief will reduce costs for millions of working Americans.”
Schiff: Canceling Biden was “a huge accomplishment. Still, I would like to see him do more. Canceling $50,000 for all would revive our economy and keep the doors of higher education open to all. Let’s do that !”
Escobar“This is an important step to strengthen and develop the middle class; I’m glad to see it!
Here too, Slotkin was an outlier, saying she was “happy for people who will be relieved of this policy” but that “it’s a one-time band-aid that doesn’t get to the root of the problem”. But she also didn’t call Biden’s invocation of emergency powers to accomplish the action.
It’s possible that those lawmakers decided there was no political incentive to rock the boat on a movement they supported on substance. After all, there’s nothing more they can do legislatively to stop Biden from taking this unilateral step — an action that, had Congress gotten its act together and passed the bills it advocated for months, Biden might never have been able to take at all. (Even given this charitable build, Schiff’s statement comes across as particularly egregious, actively calling on Biden to double down on his efforts.)
Some Republicans who have worked with these Democrats on emergency powers legislation have been unimpressed. “Presidents love to abuse their emergency powers, and many members of Congress are more than happy to look the other way when that abuse is in the service of a policy they support,” said Rep. Peter Meijer, who served as a Republican co-leader on another bipartisan legislative vehicle for Emergency Powers Reform, National Security Reforms and Accountability Act. “I’m not at all surprised that Democratic members of Congress are supportive of this abuse of emergency powers – to act in a manner consistent with their prior beliefs would be unpopular and difficult to communicate to their base, so they’re lining up. .”
None of these Democratic lawmakers responded to multiple requests for comment, so the most important question remains unanswered: Will Democrats continue to push to end this significant imbalance in favor of unilateral executive power? Or, having taken a liking to their own political victories thus obtained, will they be content to fall back into the status quo?