What Are the Limits of Emergency Executive Powers?

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The use of presidential emergency powers has raised controversy under administrations of both parties. President Trump’s attempt to transfer funds to build his border wall, the CDC’s eviction moratorium and OSHA vaccine mandate, Title 42 border expulsions, and President Biden’s student loan forgiveness plan have all raised questions of overreach. This panel explored the pros and cons of executive emergency powers and whether or not there should be tighter constraints on their use.


  • Daniel J. Dew, Legal Policy Director, Pacific Legal Foundation
  • Elizabeth Goitein, Senior Director, Liberty & National Security Program, Brennan Center for Justice at New York University Law School
  • Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
  • Moderator: Ilya Shapiro, Senior Fellow and Director of Constitutional Studies, Manhattan Institute


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.



Jack Derwin:  Hello, and welcome to this Federalist Society virtual event.  My name is Jack Derwin, and I'm Associate Director of Practice Groups here at The Federalist Society. Today, we're excited to host a panel discussion, sponsored by our Federalism & Separation of Powers Practice Group, titled, "What are the Limits of Emergency Executive Powers?" Joining us today is a stellar panel of legal experts who bring a range of views to the topic. In the interest of time, we'll keep intros brief, but you can view their full bios at fedsoc.org.


Our moderator today, Ilya Shapiro, is a senior fellow and director of constitutional studies at the Manhattan Institute. Previously, he was Executive Director and senior lecturer at the Georgetown Center for the Constitution, and, before that, a Vice President of the Cato Institute, and Director of Cato's Robert A. Levy Center for Constitutional Studies.


After discussion between our panelists, we'll go to audience Q&A, if time allows. You can enter any questions for our speakers into the Q&A box at the bottom right of your Zoom window. Finally, I'll note that, as always, all expressions of opinion are those of the speakers joining us today. With that, I will pass it over to you, Ilya. 


Ilya Shapiro:  Thanks, Jack.  Thanks, everyone, for joining us. This is an important, and continues, unfortunately, to be a timely topic, because the use of presidential emergency powers has been controversial under administrations of both parties. We have President Trump's use of funds to build his border wall, the CDC eviction moratorium, the OSHA vaccine mandate, Title 42 border expulsions, most recently, President Biden's student loan forgiveness plan. Our august panel of experts will explore the scope and the advantages and disadvantages of these emergency executive powers. And I'll introduce, very briefly, our speakers, who will go in the following order.


      First, we will have Elizabeth Goitein, Senior Director in the Liberty & National Security Program at the Brennan Center for Justice at New York University Law School. She will be followed by Ilya Somin, Professor of Law at Antonin Scalia Law School at George Mason University. And then, Daniel Dew, who is the Legal Policy Director at the Pacific Legal Foundation. With that introduction, Liza, the floor is yours.


Elizabeth Goitein:  Thanks, Ilya. And thanks very much to The Federalist Society for inviting me to be a part of this webinar. I'm going to start with a very basic question, which is, what are emergency powers, and why do we have them? Emergency powers have existed in countries around the world for hundreds of years. The argument for them is pretty simple. Because an emergency is, by definition, sudden and unforeseen, the powers conferred on the government by ordinary laws might not be sufficient to respond to it. Amending the law to provide for greater powers might take too long, and it might do damage, in some cases, to principles that are considered sacrosanct in ordinary times.


      So emergency powers authorize a limited departure from the legal norm. Their purpose is to give the president a temporary boost in power until the emergency passes, or until there's time to change the law through the normal legislative process. Emergency powers are not intended to address long-standing problems, no matter how serious. Nor are they meant to authorize permanent or long-term policy solutions that Congress itself could provide, but has chosen not to.


      Using emergency powers to get around Congress undermines the separation of powers that is the backbone of our Constitution. And the same is true for using emergency powers to get around the courts when they have blocked a policy initiative. Unfortunately, we have seen several instances of this in the past few years, beginning with Trump's declaration of a national emergency to secure funding for the border wall. 


The border wall wasn't a temporary measure to address a sudden, unforeseen crisis. It was meant as a permanent policy solution to unlawful border crossings -- unlawful border crossings which have been going on for decades or more, and which didn't suddenly get worse in February 2019. It also came after two years of Trump trying to get Congress to appropriate funds, and Congress explicitly refusing to do so. No previous president had so blatantly used emergency powers to evade the will of Congress.


      Next came the policy of trying to prevent immigrants from crossing the southern border and seeking asylum in the United States. Trump first attempted to implement that policy through regulations in 2018, and the courts struck them down. Trump's next attempt was the so-called Migrant Protection Protocols in 2019, and the courts stayed those protocols. Then the COVID hit, and Trump was able to invoke Section 362 of the Public Health Service Act, often referred to simply as Title 42, which allows the CDC to prohibit entry into the United States, in order to prevent the spread of communicable diseases into the country.


      Public health experts widely agreed that Trump's use of Title 42 wasn't necessary as a COVID mitigation measure. COVID was just a pretext. It was a way for Trump to implement a policy that the courts had rejected. Biden kept the measure in place, but, again, it wasn't really to prevent the spread of COVID. It was to buy time to figure out the logistical and humanitarian mess caused by insufficient intake resources at the border.


      The last misuse of emergency powers that I'll flag is Biden's use of emergency powers, under the COVID emergency declaration, to forgive student loan debt. In March 2020, COVID was a sudden, unforeseen crisis. Its immediate economic impact might well have meant that some people needed temporary relief from student loan payments. Trump and Biden both used emergency powers for that purpose. What Biden did this August was different. He used the COVID emergency to implement permanent debt forgiveness, not just for people experiencing economic hardship as a result of COVID, and not just for the duration of COVID.


And he did so two years into the pandemic, at which point, members of Congress had actually considered legislation to forgive student loans and had not passed it. So that starts to look less like a temporary exercise of power to address a sudden fast-moving crisis, and more like a work-around to implement a long-term policy that lacks the necessary support in Congress. This is a disturbing trend, and I suspect it's only going to intensify, as long as Congress remains so evenly divided. And that's why I think emergency powers reform is so important.


Ilya Shapiro:  Thanks very much, Liza. Ilya, the floor is yours. And I'll just mention to our audience that whatever questions you have, as they arise, you can type into the Q&A box. I'll be taking them from there later on.


Ilya Somin:  Thank you, Ilya. And thanks to The Federalist Society for sponsoring this event. Liza has given us a great overview of what emergency powers are, and some of the problems with them. I'll start by talking a little bit more systematically about the history of abuse of emergency powers, and why such abuses happen. I'll talk a little bit more than Liza did about some of the specific abuses we've seen under both President Trump and President Biden. Then, finally, I'll mention a few reforms that I think could reasonably be enacted to curb some of these problems.


      So there is a long history of abuse of emergency powers in the United States and other countries. I can't give all the examples, but there are some really big ones that deserve to be mentioned. During the Civil War, during World War I, and other conflicts, there were severe abuses of civil liberties and freedom of speech. During World War II, President Franklin D. Roosevelt infamously detained over 150,000 Japanese Americans in detention camps for several years, even though there was little, if any, evidence that these people posed any sort of a threat. And there have also been significant abuses in domestic emergencies like the Great Depression.


And, I think, these sorts of abuses -- it isn't just a matter of a particular president or some other politician made a mistake or screwed up. There are systematic reasons why they happen. One is that in a crisis atmosphere people's thinking is often less clear, and less systematic and reasonable than it might be otherwise, and, also, voter ignorance, which is a problem even during normal times. Most voters don't know much about the details of policy. This is even worse in a crisis, when voters may be in a panic. They may be scared. And they may clamor for anything that looks like strong, decisive action, even if it doesn't actually do much to address the crisis, or even if the costs of the action are greater than any possible benefits.


And, obviously, politicians and interest groups know about these problems, and, therefore, they see emergencies as opportunities for various kinds of power-grab, as Liza suggested, opportunities to implement agendas that, in normal times, they can't get through, whether it be Trump's border wall or Biden's loan forgiveness, or any number of other examples that we can think of through American history. As Rahm Emanual, an advisor to President Obama, famously put it, "Never let a crisis go to waste." This is the sort of thing that he was talking about, and, obviously, he has equivalents on the right, like Steven Miller, who certainly took advantage of the COVID crisis to implement his anti-immigration agenda, which could not have been pushed as far as it was, absent that emergency.


Now, there is, nonetheless, a standard argument for why we need to defer to the executive in these times — in particular, the judiciary should — and that is the idea that they're the experts. They know more about these issues than the courts do, or than the rest of us do. So we should defer to them during the COVID crisis. This was often called, "following the science," like, let the scientists make decisions. And I think there's something to the idea that we should rely on expertise. But this deference to expertise argument has significant limitations. I'll just mention a couple of them.


One is that if there really is science and expertise backing the policy, then the government should be able to prove that, even without special deferential treatment by the courts. Secondly, often, as in the case of the Title 42 expulsions and a number of other examples — I think, also the Biden loan forgiveness, an example of this — the claim to expertise is really a smokescreen for other kinds of agendas: an anti-immigrant agenda, in one case; the long-standing belief among many on the left that we need massive loan forgiveness, on the other.


And I think a similar story can be told about the detention of Japanese Americans and many other historical episodes. So, at the very least, before we should have special deference to expertise, we want to see some proof that specialized expertise really is the reason for the measure, as opposed to just a smokescreen put up for it. In the case of the eviction moratorium, the Title 42 expulsions, and, I think, probably, also the loan forgiveness situation, the claimed expertise is pretty obviously a pretext, and the actual experts, many of them don't even necessarily believe that public health really requires these measures.


And there is a historical and current irony in all of this, in that when it comes to emergency measures related to national security and immigration and some other issues, people on the left are very happy to make many of the same kinds of points I just made, but they tend to forget them when it comes to public health measures or things that can be portrayed as public health measures. And, of course, people on the right seem to have the exact opposite bias. But if we are able to put down some of our partisan blinkers, or take them off for a moment, we see that the patterns in these cases are quite similar.


So Liza has already mentioned a number of the abuses of emergency powers that have happened in recent years. I will just mention also the eviction moratorium, begun under President Trump and then extended several times by Biden. It's pretty obvious that Trump did this because he thought it would help him politically in the run-up to the 2020 election. And Biden continued it because many people on the left wanted this policy, and strongly supported it, even though there was never much evidence that this was actually doing anything for public health. Eventually, of course, the Supreme Court struck it down. And I think that's yet another recent example of this. And there are more that we could cite if there was more time. But I will end just by noting a couple of reforms that I think should be seriously considered.


One is, we could continue and extend strong and relatively non-deferential judicial review in these areas. We've had it in some areas, but not as broadly as should be the case. Second, there should be strict time limits for these uses of emergency powers. It's understandable, as Liza said, that at the beginning of a crisis, when you have swift action, or you need it, maybe you have to do something out of the ordinary. But there should be an expiration, say, a few weeks, or, at most, a few months. And, at that point, at the very least, it should only continue if Congress votes to reauthorize it, unlike the current situation in the National Emergencies Act, where, once the president declares an emergency, Congress can only get rid of it through an affirmative vote, which is then, of course, subject to the president's veto.


And, finally, I think people should be more aware than many of them seem to be that the emergency powers claimed by a president of your own party can later be used by a president of the other party. And you should ask yourself, even if you, say, trust Joe Biden to wield these powers, would you trust Donald Trump, or the next Republican president? And if you're a Republican president -- or, I'm sorry, if you're a Republican, ask the reverse question. Even if you trust a Republican, would you trust a democrat? If the answer is "no" — and I think for most people it's going to be "no" — then maybe you shouldn't support the exercise of these kinds of powers in the first place. Thank you.


Ilya Shapiro:  A useful thought experiment, more broadly than emergency powers, I think.


Ilya Somin:  Agreed.


Ilya Shapiro:  Thank you, Ilya. Daniel, go ahead.


Daniel J. Dew:  Yeah, thank you for having me. So, Pacific Legal Foundation has always been interested in the separation of powers. We have a center for the separation of powers. And I think that the use and abuse of these emergency powers has really highlighted a loophole that allows executives, whether at the state or federal level, to circumvent, as Liza describes, circumvent the usual constitutional form of government that we have.


So at Pacific Legal Foundation, we've worked on this on the litigation side, as well as on a policy side. From a litigation standpoint, one of the things that we found is that a lot of the emergency orders -- not only did they circumvent the usual lawmaking process, but a lot of them were arbitrary.


      So, for example, we represented a private club in North Carolina, Club 519. North Carolina had a law that allowed -- that closed down private clubs and bars, but others were allowed to remain open. There were restrictions on how much food a restaurant had to serve, or a bar had to serve. Was it substantive? Was it popcorn? Or was it hot dogs and hamburgers? And that was really the determination of whether they were allowed to be open or whether they had to close. And I think that that's part of the big problem that we see with these emergency powers, is how arbitrary they are.


      I think that it's strange to think back to April, May, June of 2020, when, every day, we would turn on our televisions and tune into our governor's press conference, and we would find out from the governor what the government was going to allow us to do that day. It was always changing. And our businesses tried to be entrepreneurial. They wanted to follow directions, but those things were constantly changing. And so it was really a fundamental fairness issue as well.


      So we filed a number of lawsuits on these issues. I think I'll go to our policy solutions, as well. And I agree with a lot of what Ilya spoke about. So we put forward a model policy, and we worked with a number of state legislatures on implementing those, making sure that each branch of government was fulfilling, or was able to fulfill, its proper and constitutional form. And so the first thing was ensuring that legislatures were brought back into the process, so, putting a time limit on emergency orders.


We tried to be careful to talk about the orders, rather than the declarations — we understand that declarations turn on spigots of federal money that the states don't want to give up — but making sure that, within a reasonable amount of time, that the legislatures are brought into this discussion. They are the policymaking body of the states, and Congress, at the federal level, obviously.


      And then I see a question in the chat talking about -- we saw a number of states that already did have these time limits on emergency orders. And what we would see is that the governor would just reissue the same order at the end of 30 days, 45 days, whatever the time limit was. And so what we recommended and were able to pass in a number of states, was something similar to what's in the Congressional Review Act, where, basically, it would prohibit the governor from issuing or reissuing the same or a substantially similar order to one that either expired or was explicitly rejected by the legislature for the same emergency.


      We also want to make sure that our courts are involved, so that they have expedited review, and when there are orders that impede on constitutional rights, that those orders are subjected to heightened scrutiny, so that courts, instead of punting, and saying, "This is an emergency. We're not going to touch this," instead, they look closer at this, because this is not something that went through the constitutional lawmaking process.


      And I'll just give one quick anecdote from Kentucky, where the legislature passed one of these reforms, ensuring that the legislature wasn't removed from the process. And I think it's a warning to others. So the legislature passed this. The governor vetoed that piece of legislation. They overrode the governor's veto. But then, the governor actually sued the legislature to enjoin them from the law going into effect. I don't know how that works. I don't understand Kentucky law, how you can enjoin a legislature from legislative [inaudible 00:19:57]


Ilya Shapiro:  It's a horse of a different color.


Daniel J. Dew:  It is, and it's bizarre. But the governor was able to find a friendly court, a local court, and enjoined the law from going into effect. Pacific Legal Foundation, we were able to represent a client in another district. Those two cases met up at the Supreme Court relatively quickly, and the court unanimously held that it was entirely within the legislature's purview to limit emergency powers.


Ilya Shapiro:  Great. Thanks for that. Before I open up broader discussion, Liza, do you want to reply to anything that Ilya or Daniel have said?


Elizabeth Goitein:  Yeah, I mean, it's so interesting to listen. I would agree that I think that courts have been overly deferential, in terms of the use of emergency powers. I will say that some of the laws in question don't really even give the courts the opportunity to review emergency powers at all. And the one that comes to mind, just because I've been working on it quite a bit, is the Insurrection Act, where the law explicitly states that if the president considers that certain criteria are met, he can deploy federal troops. And the way that's worded, the courts don't get to even assess whether those criteria have been met. And, arguably, some of the Public Health Service Act says the same, as well.


      But I want to be clear that I actually agree that the executive branch has depths of expertise in certain areas, in many areas, that are not shared by the courts, or not necessarily shared by the legislatures. And I do think, in areas of national security, I do think, in public health crises, some deference is appropriate, just like the deference that a court would give to any expert witness in a trial. Deference should not mean complete acquiescence. It should not mean abdication of judicial review.


I'm in favor, for example, with the Insurrection Act, of something like a substantial evidence standard of review, where the question is simply, is there enough evidence for a reasonable person to have concluded that these criteria were met, even if another reasonable person might disagree? So the court is not substituting its judgment for that of the executive branch. It's simply asking whether that judgment reaches a threshold level of reasonableness.


And I think there are many cases — the border wall, and others — where I think a court should say, "Actually, no. Actually, no, there are criteria in the statute here." It's not true for the National Emergencies Act — there's no criteria there — but the military construction spending provision that was invoked. Those criteria weren't met. And I think a court should feel comfortable saying, "This goes beyond a certain threshold level of reasonableness."


Ilya Shapiro:  Ilya, what do you think about that standard? Or is it just a matter of setting pleading and evidentiary burdens, at a certain way, to have real judicial review? Or are there broader issues that need to be reformed? Mike Lee, for example, has a proposal to reform the National Emergencies Act.


Ilya Somin:  Yeah, so I think there's actually a couple of questions there. First, the lead proposal, which I largely agree with, would simply say the emergency expires after -- I can't remember exactly how soon, but perhaps after a few months. And I think that makes sense. It doesn't in any way impede the use of expertise, where expertise is, in fact, being used. You can quibble about exactly how soon the emergency should expire. But that's a reform that I do favor. And I think it makes sense to pursue something like that.


      On the broader issue, I agree, in principle, with most of what Liza said, but the devil is often in the details. And, as those in the audience or on the panel who are lawyers, know, reasonableness can mean that you really have to have some significant, substantial reason. Or it could mean almost anything goes, so long as it's not completely stupid and ridiculous. And that first approach to reasonableness might be, dare I say, reasonable. Whereas, the second one, I think, in this context, at least, is much less so.


I would add, also, that I think the more the restriction on liberty that is being imposed, the greater the diversion of public funds, the larger the scale, whatever is being done, I think the less deference should be due, and especially the less should be due as you move past the immediate stages of a crisis. So, I think, in those situations, the burden of proof should go higher on the government. And, obviously, also it should go higher when there are constitutional rights at stake.


Finally, as I mentioned earlier, before you start deferring to expertise, the government should, at least, have to prove that expertise is the true reason why they adopted the policy, as opposed to a bunch of recent examples, and some historical ones, where it's pretty obvious that the claimed expertise is a smokescreen. We've talked about some of these: Title 42, the eviction moratorium, the loan forgiveness.


The Biden administration, here, is barely even claiming, in the current litigation, that they have special expertise which shows that many millions of people who seemingly are doing just fine, have, in fact, suffered a special burden because of the COVID crisis, making it harder for them to repay their loans. So I don't think deference is due there. Or, in a number of other cases, it's pretty obvious that expertise is not the real reason why what's been done is being done.


Ilya Shapiro:  Daniel, as an experienced litigator in these areas, what do you think about these whole evidentiary burdens: the rational basis and standards of scrutiny, deference doctrines, and also — you alluded to some of this in your remarks — the seeming difference, at least with respect to federal powers and federal courts, of the treatment of rights-based claims, versus government-structures claims, where the former, certainly in the religious realm and others, seem to have been more successful than those challenging the scope of government power?


Daniel J. Dew:  Yeah, I think what we saw in practice was that in a lot of our cases, judges didn't look friendly on our claims, at the beginning, because they wanted to give deference to the government. So I do think that there should be a heightened level of scrutiny given when we're acting outside the normal framework of lawmaking. So I actually think that an intermediate, or even strict scrutiny standard, when it infringes on a constitutional right, is proper.


When it's something along the lines of what Liza was talking about, I do think that it's a little bit different, because those powers are vested, are given to the president through statute. But I also agree with Ilya, who says, it depends if -- are we doing rational basis review where there could be anything that justifies it? Or is it rational basis with teeth?


Ilya Shapiro:  All right. I want to do one more beat among the three of you before we take some of the audience questions. And one thing that's sort of lying in the background of this whole discussion is how different is this discussion from an overall one about the complaint about the imperial presidency, or governance through the pen and phone and tweet? At a time of congressional gridlock, when, "If Congress won't act, I will," those sorts of complaints about executive power overreach, is the emergency power aspect a subset, a special version, something different? What do you all think about that? 


Elizabeth Goitein:  I think that's a great question, because I've asked myself that question. Do I feel the same, when the president uses an executive power that is not an emergency power, in a situation where that executive power appears to be available to him, but he knows that it's something that Congress would not support? And, in theory, that raises some of the same separation of powers concerns as the use of emergency powers.


I will say that I think the use of emergency powers is a somewhat different problem. I don't know if it's different in kind, or just in degree. But I think I am more concerned about it, because when setting forth emergency powers, Congress delegates a degree of flexibility, in general, that it would not otherwise delegate. And so these are -- and the Congress is trusting that the president will not use them in ordinary circumstances, and that they should be used in a very short-term way, that they should be used only in direct response to an immediate crisis that Congress could not have dealt with.


Most of the powers that Congress delegates to the executive branch do not fall in that category. And I think that Congress has delegated too much power to the executive branch, across a range of different issues completely outside the emergency context. I think Congress -- we have come to a point where a lot of the authority to make law and policy in this country resides with the president because Congress has given it to the president.


And I think that's problematic, but I also think that Congress should not do that, and should sort of try to reverse that trend. But, in the meantime, I think those are powers that Congress has given to the president, and the president can freely exercise them. I think it's a very different situation where the president is either exploiting an actual emergency or creating a fake emergency in order to use emergency powers for reasons they were never intended. So there is a thread running through all of it, but emergency powers has a special salience for me.


Ilya Shapiro:  Anyone else have thoughts on that?


Ilya Somin:  Yes, if I may. I think this is certainly, in some ways, a subset of the excessive growth of executive power, under its excessive growth, even in "non-emergency" situations. Nonetheless, for reasons that Liza mentioned, and also some of those that I mentioned in my initial presentation, the emergency power problem is a particularly severe aspect of it, because it happens in an atmosphere of panic. It happens in a situation where people can exploit a crisis to pursue other agendas, and so forth.


I would push back slightly on the point that you, Ilya Shapiro, made, that maybe the issue is that Congress isn't doing enough. I think it's a common perception that we have a do-nothing Congress that doesn't do anything. But, even just in the last year and a half, under President Biden, they passed several major laws. They passed the massive infrastructure bill. They passed a massive stimulus bill. They passed some other things, as well. There was important legislation passed under Trump, like the Tax Act, and so on. So the issue is not that Congress isn't passing a lot of laws. They're spending trillions upon trillions of dollars that may well bankrupt us, eventually.


It's rather that, in part, precisely because Congress has passed so many laws, that there's a lot of ambiguities, a lot of delegation of power, and, therefore, a lot of opportunities for skullduggery and other problematic behavior by the president. So it's not that Congress is sitting around doing nothing. It's that, in some ways, it too, like the president, is, perhaps, doing too much, in too many areas. And the more you do, the less it is possible for Congress to, itself, ahead of time, figure out all of the tradeoffs in application to particular cases, and the like.


Daniel J. Dew:  Yeah. I'll just add, I think that it's the same separation of powers problem, just heightened. If you look at the student loan forgiveness issue, there's no emergency rulemaking. It's basically governing by website and press release. And so that's why you see all of these lawsuits that are shifting around, because the administration is just kind of making it up on the fly as they go, because they're using these emergency powers and feel like they don't have to really do much, officially. So I think it's the same problem, just heightened.


Ilya Shapiro:  Great. And Daniel, I'll come back to you. I'm going to take some audience questions now. And, as you noted, the issue of emergency power is not limited to the federal government. Notably, during COVID, but even in more normal times, state governors exercise emergency powers of various kinds, and there are constitutional limits about temporal limits and otherwise. Mathew Arnold (sp) raised this. Steve Dewey (sp) talks about emergency decree powers, and maybe legislatures need to consider putting stronger actions. Has COVID provided a "laboratories of democracy" sort of experience, now that we know what works and what doesn't? What would be a best practice to get the separation of powers balance right? What are your thoughts on that?


Daniel J. Dew:  Yeah, I think it has. I think we've seen what happens when these emergency powers are just able to last. But I'll say it doesn't depend on whether it's a red state or a blue state. We've tried to work with governors of both parties, and their egos can be a little fragile. If you want to change those, they're offended that you think that they didn't exercise their powers in the right way. And we have to remind them that, no, this has to do with what's coming next. It's not necessarily a referendum on what you did. So I think that making sure that there are those time limits, and that the governor can't just repeatedly issue the same emergency orders over and over again, is really vital.


Ilya Shapiro:  Elizabeth, Ilya, anything on state?


Ilya Somin:  I think we've seen wide variations between states, and that could be a whole panel of its own, potentially. I will say that — unlike at the federal level — in some states, there have been efforts at structural reform to curb some of these powers. I think we already mentioned Kentucky. The state of Pennsylvania passed reform. And, interestingly, also, in the overwhelmingly blue state of New York, the democratic-controlled state legislature saw that Andrew Cuomo had abused his power in various ways, even though he, too, was a democrat. And they passed reforms.


So, at the state level, while there have been many problems, there have also, at least in some states, been more serious efforts to do structural reform. By contrast, while there has been talk in Congress about structural reform, it seems like action has been in short supply, and it seems like, in Congress, people's willingness to act, in most cases, with a few principled exceptions, seems to vary, based on whether their guy is in the White House or not. When their guy is in the White House, they tend to cheer him on, rather than reel him in. And, on the other hand, when it's the other guy, then they behave differently.


Elizabeth Goitein:  Yeah, and I would just add that if federal emergency powers scare you, then you should never sleep again, if you're just thinking about state emergency powers. The scope and the breadth of the emergency powers available to state governors go far beyond anything the president has. The federal government is a government of enumerated powers, and the sort of residual police power is left to the states. And that is pretty much anything that has to do with public health and safety is within the discretion of governors, limited only by whatever federal law might limit them, but also their own state constitutions and state law.


And most state constitutions are extremely generous, in terms of the emergency powers that they grant to their governors. And at the Brennan Center we partnered with the Hoover Institute — Institution?  I always forget that -- but, anyway, at Stanford — to put together a database of state emergency powers. And it would blow the mind.


      Now, for the very same reason why this is a little scary, it is also the case, which is that the states actually have this sort of vast police power. It also means that the states are primarily responsible for public health and safety, and we want to have public health and safety. We want that. So I think it's very important to think about ways in which reforms to state emergency powers might look different than reforms to federal emergency powers. And it's also -- I will say that I felt like, in significant respects, what governors were doing, were trying to stand in and to compensate for the absence of any kind of public health system in this country.


      And I do not believe that emergency powers should be used to cobble together a public health system. But it does worry me, once emergency powers are reformed in the way that I hope they are reformed, what will be left in place to deal with the next pandemic, which might be far more serious than COVID, if we don't have permanent authorities, non-emergency authorities in place that provide a rational and effective response for public health crises?


Ilya Shapiro:  Well, some of that gets into much broader issues of public confidence in the CDC and a Tsar, like Fauci, and what that means for the next crisis. But getting back to national emergencies, to the federal executive emergency powers, part of what we all learned is that there's not really a set definition of "emergency," but, rather, thousands of statutes that are unlocked when the president just declares an emergency. And so that's why, even for something like the debt forgiveness, the student loan forgiveness, it's not Biden kind of just waving his hands, and saying, "I forgive you."


But with the COVID emergency still, technically, ongoing, even though the president declared, colloquially, during an interview, that it was over, it was the HEROES Act passed after 9-11 that got a legalistic answer from the Office of Legal Counsel at DOJ that is being used in court to defend that authority. So we talked about reforming the powers, restricting them, limiting them. Okay, sunsetting is one thing, the time limit. But what about defining what an actual emergency is, or even limiting the type of unlocking of these other countless statutes?


Elizabeth Goitein:  I would be in favor of limiting the definition, or creating a definition for what qualifies as a national emergency. I think you need to be careful not to micromanage it. I think you need to leave a lot of room for flexibility and judgment. But, at a minimum, I think it would make sense to say that it has to be a sudden unforeseen set of circumstances that create a significant -- that cause an immediate threat to public health and safety, or something like that.


      It would be a sort of longer and more elaborate and more legalist response if I were to actually sit down and write the definition. But I think incorporating these basic principles of what an emergency is, if you look in the dictionary, emergency has a definition in the dictionary. It can't mean just anything. And every definition, every dictionary will say it has to be sudden, unexpected, unforeseen, and it has to require an immediate response.


And there are ways to put that into legal criteria. And I think that would be a good idea.  There's always going to be subjectivity. There's always going to be room for mischief. That's why we want to have both a political check, in the form of congressional action, and a legal check, in the form of judicial review.


Ilya Somin:  At the time when Trump declared the border emergency to try to justify building the border wall, I made the argument that even the use of the word "emergency" in the current National Emergencies Act, although, obviously, that word isn't defined, it should still be interpreted as meaning, more or less, what Liza just said: a sudden, unexpected crisis, as opposed to just anything the president wants it to be, because the Supreme Court has said that, in most cases, courts should interpret words in accordance with their ordinary usage.


And the ordinary usage of "emergency" is not anything the president says is an emergency, or anything that might usefully provide a justification for a policy that the president wants to do, or something like that. So, by those criteria, I argued at the time, though almost nobody else agreed with me, that the border wall situation was not an emergency. I think the COVID crisis was a genuine emergency, was a genuine, unexpected large-scale crisis. I'd have to concede that.


But I think there's also, then, room for reform about exactly what powers that triggers, and Liza has written previously about the enormous list of things it has triggered, some of which we should reconsider, and some of which should be taken off entirely. One of my favorite examples is, in theory, it creates the opportunity for the president to test chemical weapons on unwilling human subjects. And I think we can do without that power, and there are some other powers on the list we can do without entirely, and others that, at the very least, should be more limited.


Ilya Shapiro:  A question from Garret Snedeker, "How strongly would you consider President Biden's statements on the eviction moratorium in August 2021?" So I take it this is after the Supreme Court allowed the moratorium to stay in place and expire naturally, and when he was renewing it, so his statements, then, to demonstrate departmentalism — that is, the president, the executive branch, deciding for itself what the Constitution means — or, instead, more of the normal rough-and-tumble politics.


Ilya Somin:  I wrote about this extensively, so I wonder if I could answer. If people disagree with me, they're certainly welcome to comment. I just want to very briefly review what happened, which is that Trump instituted the moratorium in September of 2020. It was renewed several times by Biden. There was litigation over it. Many lower courts ruled against the moratorium, but a D.C. circuit upheld it. The issue reached the Supreme Court on the so-called shadow docket in June. And the Supreme Court refused to enjoin the moratorium, but they did say, in a concurring opinion by Justice Kavanaugh, they said, basically, "If you extend this again, past the July 31 deadline, then we're," essentially, there was a very strong wording, "We're going to strike it down."


It looked like, at first, that Biden was going to let it expire on July 31, and leave it at that, but then there was efforts in Congress to enact it. And Nancy Pelosi, the speaker of the house, told him he didn't have the votes. And she also said, "You have to find a way to extend this. Find better lawyers," she famously told him. So he consulted some additional lawyers. And then he did put in a new, slightly modified version of the moratorium. When asked about this, he conceded that most constitutional experts expect that it would be struck down by the courts, but he was going to do it anyway.


So you could say this is departmentalism, in the sense of him just disagreeing, perhaps, with the court's view. So now, since it's departmentalism, in a weak sense, like, the president doesn't have to agree with the court's view, I don't think it's departmentalism in the strong sense of the word, of the president saying, "I'm just not going to obey a contrary Supreme Court decision." And, in fact, to his credit, when the Supreme Court ruled against him, Biden did not try to keep the moratorium going. They didn't even pursue certain avenues of arguments that might have still been available to him. They still dropped the thing.


So it was, perhaps, weak departmentalism, or modest departmentalism, but, in my view, not the strong form that some departmentalists, academics, advocate, of the president just simply saying, "The Supreme Court has made its decision. Now let them enforce it, because I'm just going to keep on doing what I want." And, fortunately, Biden didn't go that far, though it does seem clear that he took a measure that he knew was probably illegal, for political purposes. He could give sort of the left wing of the Democratic Party, and some others, what they wanted. And then, when it got struck down, he could blame the big, bad Supreme Court, rather than having to take the blame himself.


Elizabeth Goitein:  So can I say something about that case --


Ilya Shapiro:  Sure.


Elizabeth Goitein:  -- which actually isn't directly responsive to the departmentalism point? But what I find interesting about that case is that the decision turned on whether or not the Congress had spoken clearly enough. And I can see that argument. There's also a way to read the statute where you would say, "And that's the major questions doctrine, basically, right?" There's another way to look at that case and say, "Actually, I think Congress was pretty clear that the secretary can kind of do anything to try to prevent the spread of disease over state borders.


And then, that's a whole different question, which is the nondelegation doctrine, and does this law actually delegate such a sweeping and unlimited power that that raises problems in some way. And, presumably, because the non-delegation doctrine -- at this point, nobody really knows if it's alive or dead. It's been dead for so long. But then, a lot of people are saying now it shouldn't be dead, and what does the future hold?


      But I was wondering if that case might be the time at which the Supreme Court maybe went back to the nondelegation doctrine. They did the major questions doctrine instead. And I think that I'm not sure that was the right answer in this case, or the right way to get to that answer. But it's interesting.


Ilya Somin:  If I can engage in shameless self-promotion, I have a whole article devoted to the use of major questions and nondelegation in this case, and also in the Title 42 case, which was strikingly similar, where I make — in the NYU Journal of Law and Liberty, but also available on SSRN for free, or on my website — and I point out, I think the statute was ambiguous enough that, at the very least, the major questions doctrine did apply. But, if not, if you read it the way the government did, that it would essentially give the CDC the power to suppress almost any human activity --


Elizabeth Goitein:  Yeah, that's right.


Ilya Somin:  -- because almost any human activity involves movement, has a chance of spreading contagious diseases across state lines, and there's not limitation based on the seriousness of the disease. So, in principle, they could say, "This could spread to flu, or the common cold, or to Shingles, and, therefore, we can suppress it." And, I think, if anything violates non-delegation, something like this does.


And I believe that concern was in the background of the court's decision, even though they formally based it on major questions. And, indeed, I believe if there is a justification of major questions doctrine, it's as a stand-in for non-delegation if the Court doesn't want to do a robust constitutional nondelegation doctrine.


Elizabeth Goitein:  But Title 42 -- sorry.


Ilya Shapiro:  Perhaps the vindication of Justice Gorsuch's dissent in the Gundy case about hydraulic forces, doctrines that had not been used, coming back in another way, doing the same work. Sorry, Liza, go ahead.


Elizabeth Goitein:  Oh, I was just going to say I think Title 42 is slightly different. I think the statute is more clear there. I think that's less of a major -- that's more likely to be a question of delegation, and less -- and even then, I think that statute speaks fairly clearly, and probably the authority is one that Congress can delegate. What I worry about is, does that statute have enough in it to provide the necessary checks against abuse, because it is such a powerful tool. And it's a powerful tool that comes without a whole lot of either substantive or procedural checks. So, anyway --


Ilya Somin:  So I disagree with you about Title 42, but I will refer people to my article, where I go into some detail on that point.


Elizabeth Goitein:  Darn it, I don't have an article on Title 42.


Ilya Shapiro:  Well, if we're plugging articles, I have one on Judge Bush's dissental in the Sixth Circuit in the OSHA vaccine mandate case in the Texas Review of Law and Politics, but which we haven’t discussed. But that's okay, we don't need to get every jot and tittle. A different sort of question here, in terms of we were talking about remedies and judicial review. Who has standing to challenge some of this stuff? I mean, if it's an individual property owner or churchgoer, that's obvious enough.


But what about separation of powers claims that the emergency is really over, or the governor went over their legislated emergency powers? Does the senator or representative have standing? If not, who does? This is a question from James Cusack, "States are currently struggling to show standing or harm, regarding the student loan forgiveness, so this issue of who can actually get into court to challenge some of this stuff?"


Ilya Somin:  Yeah, so I've been a longtime critic of restrictive standing doctrine. I think it's sort of a fake doctrine that the court invented, and should be gotten rid of. There should, for at least most major exercises of government power, be taxpayer standing, or something similar. Under the current doctrine, for some of these things, it's very easy to find someone who has standing. Like, for the eviction moratorium, for example, landlords had standing, or organizations of landlords. I think nobody seriously disputed it.


Similarly, for the vaccine mandate case that Ilya Shapiro mentioned, employers and other people, subjects to mandate – they had standing. On the other hand, for something like loan forgiveness, it does seem like part of the Biden administration strategy is to hope that they can evade having judicial review, on the theory that nobody will have standing.


For instance, they say, "Well, what we're doing is giving out benefits. The people who get the benefit, they don't have standing, or actually their situation is being improved. And the people who don't get it, they're not being harmed, relative to the previous status quo." I do think that, in the lawsuit filed by the six states, at the very least, you can have standing, because at least one of them, Missouri, has a loan servicer, which services some of those loans, and if the loans are forgiven, the profits of the loan servicer are lower than they would be otherwise. That's a clear economic harm that qualifies for standing.


The district court said, "Well, no, because the state of Missouri doesn't have sufficient total control over what is still a state-owned loan servicer." I hope and expect that that way of reasoning will be overruled on appeal, because if you actually owned a thing, it seems like any financial harm that it suffers is also a harm to the owner, even if the state law says that the funds of the servicer are separate from those of other state agencies, and the officials who run the servicer have some autonomy from other state officials. But we'll see what happens. And, more generally, I think -- I also want to answer the one bit of the question that asked about standing by members of Congress.


Under current precedent, individual members of Congress don't have standing to challenge various exercises of spending power, but a house of Congress does have standing. The D.C. Circuit issued that ruling when the democratic-led House of Representatives sued to challenge the border wall. So, if — and, obviously, it's an "if" — but if the Republicans take control of at least one house of Congress, they could file a similar lawsuit challenging the loan forgiveness program. And, unless the Supreme Court reverses that D.C. Circuit precedent, that precedent would allow the House of Representatives, or the Senate, to file a lawsuit, even though individual members of Congress could not.


Ilya Shapiro:  So watch out if Republicans do take the house, as pollsters seem to expect. Come January, we might have BLAG, the bipartisan -- what's it called? Legal advice group?


Ilya Somin:  Advisory.


Ilya Shapiro:  Litigation Advisory Group, yeah. Daniel, when you're actually litigating these cases in court, what's been your experience with standing, or other procedural, jurisdictional issues that law professors might not always think about? What kind of practical roadblocks are there, specifically in the emergency powers context?


Daniel J. Dew:  Yeah, I mean, in most of the states' emergency powers, it's pretty easy. You have a business owner who's harmed, who has clear-cut standing. We represented landlords in the CDC eviction moratorium cases, so that was pretty cut and dried. When it comes to the student loan forgiveness case, as Ilya mentioned, that one's a lot harder to find somebody with standing. We currently have a case in the southern district of Indiana. We have, actually, an attorney who works for Pacific Legal Foundation, who's participating in the public-interest loan forgiveness plan.


And Indiana is one of six states that taxes loan forgiveness, so he's going to have a tax bill, if that goes through. Long story short, the federal government said, "Fine, we won't forgive yours," and they're changing it to an opt-in. So, as was mentioned before, they're kind of changing things on the fly to try to kick people out of court.


Ilya Shapiro:  Switching gears from practical litigation nuts and bolts to broader philosophical issues, an anonymous viewer writes that in today's Wall Street Journal, Gerard Baker wrote, "Across the West, we are led by too many inferior people who shouldn't be left in charge of a Lego set, let alone the entire edifice of national government." To what extent is the emergency powers a legal problem to be solved, as opposed to a warning indicator, letting us know that we're consistently electing leaders who are not faithfully executing the laws?


Elizabeth Goitein:  I love it, but it's an expensive warning indicator. I'd rather find out in other ways, I guess. I mean, sure, the emergency powers are dangerous, because they're prone to abuse. And anybody who actually takes up the invitation and abuses them -- I don't know. I shouldn't say this. I think that, given the dysfunction that we have in Congress right now, it is understandable that presidents, speaking generally, are falling back on executive power to govern, despite what Ilya Somin said about the fact that Congress has passed some laws recently, sure. But I think Congress has passed a handful of laws.


If you look at the actual rates of legislation that Congress is passing today, compared to 20 years ago, 30 years ago, 40 years ago, Congress is asleep at the wheel. And, again, and again, Congress fails to enact the policies that majorities of Americans consistently support. Congress is dysfunctional. Does anybody want to fight me on that? Congress is dysfunctional. And so, I get it. I get why presidents are taking advantage of the leeway they have been given by Congress, including through these emergency powers, to try to get stuff done.


So does this mean they are unfit to be leaders? I'm not willing to go that far. But it does mean that we're in trouble if we don't do some very serious rethinking about the way that Congress has delegated powers, particularly with respect to emergency powers, and what we can do about that, going forward. So I think I want to sort of step back a little from where I was going with that. I don't think it's true that any president who uses emergency powers to get stuff done out of frustration with Congress is unfit to lead, by definition. I do think they have abused the powers that Congress gave them. And I think we have to make it a lot harder for presidents to do that.


Ilya Somin:  Just a brief thought on that. I think the real problem, or a real problem here is not that the current class of politicians are particularly unfit, though, in a few cases, such as Trump, you could say that they go beyond the bounds of the "normal," in terms of the awful things they're willing to do. But part of what we're seeing here is that political leadership, by its nature, attracts the kind of person who is power-hungry, and that was willing to abuse the power to gain various kinds of political and ideological ends. So, while you can argue Trump, in some ways, is outside of the normal, Joe Biden, for example, seems like he's as normal as they come, in terms of career politicians. It's hard to argue that he's sort of a weird or strange personality, but yet he's still doing this kind of stuff.


I think it's because part of it is the kind of people that are attracted by these careers, generally speaking, and partly because of the incentives of the office. And, yes, sometimes it is because Congress is doing a bad job. But I think, to the extent that Congress is doing a bad job, it's not because it's passing too little legislation. I think, if you look at the scale of the legislation, as opposed to just the sheer number of laws, the scale is enormous, what they've done even just during the last couple years, or even during the years of Trump or Obama. It's that the federal government controls so many aspects of our lives that, whether it's Congress, or whether it's the president, them trying to control all of that, they will likely do a bad job. And, indeed, even perfectly normal, ordinary politicians would tend to do a bad job, never mind the occasional Donald Trump that can be even worse than that. So, ideally, we should have a government that does fewer things well, rather than the current attempt to do many things badly.


Elizabeth Goitein:  So, literally, until this moment, y'all didn't realize that Ilya and I are on different sides of the ideological spectrum?


Ilya Somin:  Liza and I agree on many things --


Elizabeth Goitein:  On many things.


Ilya Somin:  -- including many things involving emergency powers. But there are some things we differ.


Ilya Shapiro:  Well, Biden might be an ordinary Joe, but seems older and having lost a few miles off his fastball, that wasn't all that fast to begin with, either. Before we conclude, I do want to get to another area of law that we haven't yet touched on, but is especially important now, as we're two weeks away from the midterms. And that's emergency powers regarding election regulation, whether with COVID, and the kind of writing, changing rules on the fly, leading to distrust in the confidence of voters, of the public, in our electoral institutions: claims of suppression on one side, fraud on the other.


      How do we deal with emergency powers over elections? "Potentially," Devin Watkins asks, "could the independent state legislature doctrine that's at issue in the case of Moore v. Harper before the Supreme Court this term gain some clarity on that issue?" Anybody want to talk about election law -- emergency powers over election law? I guess not.


Ilya Somin:  So fools rush in where wise men fear to tread. So I can't do justice to the topic in, like, one minute, but I will merely say that, obviously, there does need to be oversight in this area. But I would say here, actually, the story during COVID is much more of a success story than in other areas, in that we did have various emergency measures that were taken. For the most part, however, they didn't restrict anyone's liberty to any significant degree. They did not cause any more voter fraud than would normally occur, despite Republicans' mostly bogus attempts to claim otherwise.


And many, not all, but many of the measures were actually reasonably understandable, given the situation, such as more access to mail-in ballots and the like, so that people wouldn't be in crowded facilities. I'm not going to claim every measure was right, or that there aren't some legal issues in the independent state legislature doctrine. That could be a whole webinar of its own. But it seems to me that here the problem is not that horrible things were done, although maybe some mistakes were made.


The problem is that people like Donald Trump, but also, in some cases, people on the left — with respect to voter suppression, so-called — made irresponsible claims about what happened, and, sadly, much of the political base of those people believed those claims, rather than seeing that the claims were almost entirely without merit, as, actually, courts repeatedly ruled, in the case of Trump's claims, and also in the case of -- there wasn't even a court case, but also, for instance, Miss Abrams' claims about the 2018 Georgia election where she falsely claimed that she didn't really lose, even though it's pretty clear that she did.


Ilya Shapiro:  All right. I want to get in one more issue. And this is a chance for Daniel to jump back in. I'm sure one of his frustrations is that in some of these cases, courts sit on them for a long time, and then moot them because the issue has disappeared. The emergency order or lockdown restriction has gone away. There's a question from Warren Norred that raises this in the context of the Texas Alcohol Commission's irrational rules. But, of course, this comes up in a whole host of areas where, again, the courts don't rule, and then the thing being sued over has sunsetted or gets rescinded, and the court's mooted out. How do we deal with those kinds of issues?


Daniel J. Dew:  Yeah, we saw that a lot in a lot of PLS cases where the courts just sat on their hands and then eventually said that this is over, and we don't have to deal with it. I think that the legislature should instruct courts that they should look at these issues, that they should provide expedited review, and, again, as we mentioned before, set the standard by which they should judge these emergency orders to make sure that they're not arbitrary. I think that would send a strong signal to the courts that they shouldn't just sit on their hands and wait for the emergency to be over.


Ilya Shapiro:  All right. I think we have to end it there, just a few minutes after the hour. I want to thank Liza Goitein, Ilya Somin, and Daniel Dew for their comments. Thanks to The Federalist Society and the Separation of Powers Practice Group for allowing me to host this event. Thanks to all of you for attending. And this will be posted online quite soon. FedSoc is good about that. And, with that, Jack, unless we have anything else, I think we're adjourned.


Jack Derwin:  I think that does it. Thank you very much, Ilya. And I'll echo your thanks for the rest of our speakers, as well. And thank you to our audience for tuning into today's event. You can check out our website, fedsoc.org, or follow us on all the major social media platforms, @fedsoc, to stay up to date. With that, we are adjourned. Thank you.





Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.