An Overview of Federal Emergency Powers
When living in a time of crisis, it becomes easy to forget that our institutions have been through crisis before. That our institutions are still here and operating today is a testament to the fact that they are, on some meaningful level, resilient to incredible strain. This is, in large part, because they were designed to operate under this strain. While the Framers of the Constitution were undoubtedly working to build a government that operated effectively on a day-to-day basis, they were also preoccupied with creating a structure that could withstand extreme pressure, respond to threats, correct its own errors, and survive to work for the general welfare of the American people in the long run. One element of the constitutional design central to this resiliency is the availability of vast emergency powers to use in response to exceptional threats. Of course, no system is perfect, and no matter the intentions of the Framers, as American civilization has developed and expanded, so too has the complexity of our society and governmental structure. If the SARS-Cov-2 pandemic has shown anything, it is that there is great disagreement as to what the theoretical and actual limits of federal emergency powers are and ought to be.
“Emergency” is, of course, a very difficult legal concept to define and analyze, not least because it implicates an endless range of topics, from the very broad to the very specific. Emergency, and especially extreme and existential emergency, interacts with fundamental principles as the basis of sovereignty itself and the very nature of government and the state—if a government cannot adequately protect its people from a crisis, that government is not likely to survive. Still, as with any legal principle, the principle must be made to function in the real world, whether it be through constitutions, both written and implied, or through more mundane and routine statutory law. Complicating any analysis of emergency and emergency powers even further, there is not only no agreement on what precisely an emergency is or ought to be, but there is also no theoretical end to the nature and type of possible emergencies that could arise, especially as society continues to develop and grow ever more complex.
It is essential to begin any analysis of federal emergency power in the United States by understanding the theoretical, constitutional, and statutory bases for such powers, the history of the use of such powers, and where the law stands today. In an attempt to aid in this understanding, this Note will explore the theoretical and constitutional basis for federal emergency power, arguing first that the conception of federal emergency powers in the United States Constitution is best understood as expansive and flexible, and second, that the primary, though not exclusive, functional limits to this power are the protections found within the structural portion of the Constitution, namely separation of powers and the political process. This Note will then turn to how the statutory law of emergency functions and has developed under the constitutional structure, arguing that, while the constitutional framework for handling emergencies lays out a strong and flexible structure for addressing emergency, the statutory law of emergency which has subsequently grown underneath the constitutional structure contain many concerning faults in implementation.
