Today’s Ad Law Reading Room entry is “Emergency Powers for Good,” by Elena Chachko and Katerina Linos, which is forthcoming in the William & Mary Law Review. Here is the abstract:

Emergency powers are widely, and justly, criticized as threats to the rule of law. In the United States, forty-three declared emergencies give the executive vast authority to exercise power unencumbered by standard legal and procedural requirements. A long tradition of executive use of emergency powers to erode civil liberties amplifies fears of executive overreach.

Yet this, we argue, is only part of the picture. We examine how emergency powers can be used for good. We argue that under certain limited conditions, political actors can legitimately invoke emergency powers to transform public policy. In addition to widely accepted requirements of crisis severity, transparency, and time limits, we argue that broad consensus and a reformulated non-discrimination requirement are essential to the proper use of emergency powers for societal transformation.

We analyze recent high-profile exercises of emergency powers by the U.S. executive to fund a wall on the southern border and to forgive billions in student debt, as well as the European Union’s (EU) extraordinarily frequent and broad use of emergency powers in the last three years in response to COVID-19 and Russia’s Ukraine invasion. We conclude that the U.S. measures fail under our normative framework, while the EU measures offer a promising template for the transformative use of emergency powers.

“You never let a serious crisis go to waste. And what I mean by that it’s an opportunity to do things you think you could not do before.” – Rahm Emanuel

Recent years have seen U.S. Presidents invoke emergency powers not only to address the perceived crisis at hand but to move public policy in their preferred direction. Officials in the European Union have done similarly. While such actions might be condemned as nothing more than rank opportunism, Chachko and Linos’s major contribution is to paint a much more nuanced picture. By developing an elegant framework for evaluating the legitimacy of transformative exercises of emergency powers, the authors reveal when and how such powers might be used for good. That framework is then deployed to assess the legitimacy of recent actions taken in the U.S. and abroad. It’s both a powerful piece and an easy read. Check it out!

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.