We appreciate receiving attention, even if critical, from one of America’s most powerful conservative organizations. Americans for Prosperity (AFP), a libertarian and fiscally conservative advocacy group, has been widely recognized as one of the most influential conservative organizations in American politics. While we appreciate the attention Kevin Schmidt and Thomas Kimbrell of AFP have given to our article “Emergency Powers for Good,” their piece mischaracterizes our argument in several important ways.

Our Framework Is Non-Partisan, Restrictive, and Tailored to Modern Emergency Responses  

Our article acknowledges that we are indeed expanding emergency powers doctrine beyond its traditional domain of national security into the economic sphere. We do so in response to recent transformative uses of emergency powers by U.S. and EU policymakers that fit poorly within traditional emergency powers doctrine. While our expansion is significant, we propose strict limits on when transformative powers can be legitimately exercised. The critics overlook these crucial limitations.

First, our framework is far from a permissive shill for progressive causes. Of the three U.S. examples we examine in detail, we find that President Biden’s student loan forgiveness program and President Trump’s border wall both fail our framework’s requirements. The only U.S. example that passes our test is President Bush’s auto industry bailout during the 2008 financial crisis. And while we recognize that plan failed to garner explicit congressional authorization, it still got the support of a sitting President, a President-Elect and the leadership of both parties. Our claim is simply that such bipartisan expression of support for an emergency measure puts a thumb on the scale in favor of upholding it. 

Second, our analysis of EU emergency measures shows how high our bar is in practice. We examine cases that received overwhelming supermajorities or unanimity among 27 member states led by governments across the political spectrum, including center-right and far-right parties, as well as many other veto players. This hardly suggests a progressive bias or loose standards.

Finally, while Schmidt and Kimbrell are correct that we propose extending emergency powers beyond traditional national security concerns, this reflects the reality of modern governance. Today’s most pressing emergencies often manifest as economic crises, pandemic responses, or energy challenges. Our framework provides guardrails for how democratic societies can respond to these new types of emergencies while preserving democratic institutions and protecting individual rights. Like it or not, governments have and likely will continue to leverage emergencies to accomplish broader policy goals. We could continue trying to shoehorn such emergency measures into an ill-fitting legal and theoretical framework focused on restoring society to the pre-emergency status quo. Transformative emergency measures are by definition disproportional to that objective. Or we can take transformative measures for what they are and deploy a framework that accepts such measures in a limited set of cases, separating abusive measures from ones that clear a threshold of legitimacy.    

Our Framework Introduces Two Demanding New Requirements

Schmidt and Kimbrell’s critique focuses primarily on our consensus requirement, which they characterize as “arbitrary and amorphous.” However, they overlook that our framework introduces not one but two new stringent requirements, both of which must be satisfied for transformative emergency action to be legitimate.

The first requirement – broad consensus – is far more demanding than portrayed. We require genuine cross-ideological agreement across political institutions and party lines, a substantially higher bar than either the traditional emergency powers framework or standard legislative processes. While the authors correctly note that crises can sometimes generate artificial consensus through fear, this is what the second requirement checks against. 

The second requirement – which the authors do not address – is our enhanced non-discrimination standard. This goes beyond traditional protections against overt discrimination to require careful consideration of how emergency measures might affect vulnerable groups, even indirectly. Emergency actions that disproportionately burden marginalized communities fail our test, regardless of their level of political support.

Importantly, both requirements must be met. Even unanimous political consensus cannot legitimize emergency action that fails our enhanced non-discrimination test. Conversely, measures that protect vulnerable groups but lack broad cross-ideological support would also fail our framework. This dual requirement, we argue, provides a robust safeguard against abuse and an adequate substitute for the existing framework’s proportionality requirement. By preserving the sunset requirement in the existing emergency legal framework, which mandates time limits for emergency measures, we further protect against entrenchment of consensus induced by fear in times of emergency.  

Our Framework Is a Test for Courts in Democracies, and Maintains Existing Strictures

Perhaps most fundamentally, Schmidt and Kimbrell mischaracterize our proposal as advocating for executive branch power grabs or “autocratic dictates.” This misunderstands our framework’s audience and purpose. We propose a test for courts to evaluate emergency measures in stable democracies with strong judiciaries and robust systems of checks and balances. Our framework supplements, rather than replaces, existing constitutional and legal constraints on the exercise of emergency powers.

The authors’ “benevolent dictator” charge particularly misses the mark given that our framework would only operate in established democratic systems where:

• Courts actively review emergency measures
• Strong institutional checks and balances exist
• Clear sunset provisions limit emergency actions
• Transparent procedures ensure accountability
• Traditional constitutional safeguards remain in force

Conclusion

We share Schmidt and Kimbrell’s concern about potential abuse of emergency powers. Indeed, this motivated our effort to develop a framework with additional safeguards beyond the traditional model. However, their critique misses the central aim of our work: to acknowledge that in rare circumstances, emergencies may require transformative responses, while simultaneously establishing stricter parameters for when such responses are legitimate. 

Global economic, health, climate and energy crises appear to be on the rise. Legislative gridlock has left governments ill-equipped to address them, and policymakers at times relied on transformative emergency measures to fill policy gaps. Our framework simply brings transformative emergency measures to the fore of the theoretical and doctrinal debate. It charts a path for regulating such exercises of emergency powers alongside traditional domestic and international emergency legal frameworks.    

Elena Chacko is an Assistant Professor of Law at Berkeley Law School. Katerina Linos is a Professor of Law at Berkeley Law School.