When former President Trump declared a national emergency at the Southern border, completing an end-run around Congress to find money for his promised border wall, congressional Democrats correctly decried it — and sued him over it. But even many of the Republicans who did not oppose Trump’s usurpation of Congress’s authority could foresee the implications of his power-grab. They warned that it could open the door for a Democratic president to do something similar. As Senator Marco Rubio said at the time, “If today, the national emergency is border security … tomorrow the national emergency might be climate change.”
Fast-forward to the end of January: prior to the introduction of any legislation reflecting President Biden’s climate goals, Senate Majority Leader Chuck Schumer invited Biden to declare a climate emergency to access money and issue directives outside of the legislative process, just as those Republicans predicted. Many progressive climate activists responded to Schumer’s invitation with glee. But we think the move would be deeply misguided.
To be sure, there are important differences between the circumstances surrounding Trump’s border wall declaration and a potential climate emergency declaration. On the one hand, the clear weight of scientific evidence clearly indicates that global warming is a grave threat to the planet that we are running out of time to address. The U.S.-Mexico border does not pose such an existential problem for the country. Nor is it an immediate one, as demonstrated by years of congressional debate and votes on immigration reform, including those on Trump’s repeated requests for funding of a border wall. In contrast, Biden and the Democrats have reason to be concerned that their legislative agenda on the climate crisis will not get an up-or-down vote in a 50-50 Senate, which further underscores why fixing the Senate’s rules should be a front-burner priority for anyone who wants our legislative branch to do its primary job.
Even so, the clear need to blunt the dangerous consequences of climate change and the Senate’s dysfunction aren’t sufficient reasons for President Biden to short-circuit the legislative process by declaring a climate emergency.
So are we consigned to watching competing executive power-grabs with each change in which party controls the White House? And to living with a Congress that increasingly refuses to attempt to tackle big problems through legislation and even implores the president to usurp its powers? As representatives of an organization that sued former President Trump to block his border emergency and that continues to champion emergency powers reform in Congress, we sincerely hope not. Indeed, we hope that the absence of an emergency proclamation from President Biden’s initial round of climate-focused executive orders reflects his understanding that major domestic policy reform generally requires congressional, not executive, action—both to achieve significant results, and because, when it comes to major appropriations and implementation of federal policy, the Constitution requires it. Moreover, using emergency powers in this context would deliver a serious blow to rebuilding the kind of Congress the public needs to address climate change, among other serious policy issues, in any meaningful way.
Here are four reasons why President Biden should not use a national emergency to take action on climate change:
First, as our organization argued in court along with Harvard Law School Professor Larry Tribe, prominent conservative lawyer and former high-ranking Department of Justice official Stuart Gerson, and the Niskanen Center, an “emergency” within the meaning of the National Emergencies Act (“NEA”) is an unexpected event requiring action ahead of Congress’s ability to propose and deliberate on solutions. Neither immigration nor climate change — which scientists have been warning us about for decades — is that. An “emergency” is also a problem that can be addressed through a quick short-term solution. Building a border wall that takes months or years to complete is not such a solution and there’s no short-term fix for climate change (although there certainly could be pop-up catastrophes such as wildfires or hurricanes that would justify the use of emergency powers). In short, while climate change is a crisis that has been made all the worse by the neglect of our government leaders, it isn’t the kind of problem that allows Congress to give away its constitutional powers — or the president to take them — in order to address it.
Second, as the Brennan Center’s Liza Goitein has explained, while a president’s emergency powers are expansive and all too easily abused, the powers accessible under the NEA aren’t adequate to address the climate crisis. As Gotein puts it, the authorities made available after an emergency is declared under the NEA might permit the use of limited pots of money, the suspension of certain oil and gas leases with appropriate compensation to the holders, or sanctions on other countries. However, “[t]he handful of potentially relevant provisions triggered by a national emergency declaration” wouldn’t put a dent in a problem that demands systemic change backed by the expenditure of enormous resources.
Climate experts agree that what we really need, as Michael Burger, the Executive Director of the Sabin Center for Climate Change Law at Columbia University, has said is a “large-scale transformation of the American economy and a complete transition away from fossil fuels.” Or, as President Biden explained in his campaign’s climate plan, we need a plan to “ensure that the U.S. achieves a 100% clean energy economy and reaches net-zero emissions” by the year 2050. These are not objectives that using emergency powers can achieve.
Third, President Biden would almost certainly be hit with legal challenges that worked well (at least in the lower courts) against President Trump for attempting to use emergency powers where they aren’t warranted. Indeed, such challenges might be even more effective against the Biden administration given the current composition of our courts. Any benefit to be had from the declaration of a climate emergency is thus minimal by comparison to the damage it would inflict on the credibility of Biden’s pledges to roll back Trump’s abuses of executive power.
Fourth, using the President’s emergency powers in this way would threaten efforts that are already underway to rebuild and fortify our democracy by reasserting Congress’s role as a co-equal branch of the federal government. In the 116th Congress, Democrats joined a significant push to reform the NEA. In July 2019, the Homeland Security and Government Affairs Committee approved Republican Senator Mike Lee’s ARTICLE ONE Act with unanimous support from Democrats. In October of that same year, Democratic Senators Carper, Hassan, Peters, Sinema, Schatz, and Udall joined 9 Republicans, led by Lee, to ask McConnell and Schumer to schedule a vote on the bill. If that bill were to become law, it would preserve the President’s ability to act quickly by retaining his or her ability to declare an emergency. However, it would sunset any such declaration after 60 days if Congress does not approve it and require a renewal vote each year.
Democrats have also embraced limiting executive overreach in two major bills aimed at countering abuses of power, the Congressional Power of the Purse Act (“CPPA”) and the Protecting Our Democracy Act (“PODA,” which also contains CPPA), both of which are capable of garnering bipartisan support. Section 301 of the CPPA contains a slightly modified version of Senator Lee’s bill (the ARTICLE ONE Act). The CPPA also strengthens the Impoundment Control Act to force the President to spend appropriated funds, such as the security assistance for Ukraine that President Trump improperly withheld. PODA contains provisions to protect against other abuses of executive power. For example, it includes provisions to increase transparency in contacts between the White House and the Department of Justice, strengthening pre-Trump norms of independence. It also creates reporting requirements for certain uses of the pardon power and includes a finding of Congress that self-pardons are not legal. And it would make it harder to fire inspectors general or whistleblowers.
Taken together, these measures would nudge Congress to exercise its Article I powers more intentionally and prevent the President from bypassing the legislative branch. But it would undermine the Democrats’ message that the president cannot rule as a king if President Biden exercises–and abuses–the very powers they are trying to reform through these initiatives. And it would exacerbate the congressional dysfunction that has hamstrung legislative action on both immigration and climate change.
The Trump presidency has shown us that the threat to democracy posed by unrestrained executive power is as grave as any we face. Declaring a climate emergency would only compound the damage Trump inflicted without truly addressing the very real threats posed by climate change. The various ongoing efforts to stem the tide of runaway executive power are a recognition by members of both political parties that we need a Congress that can solve big policy challenges, such as climate change, COVID, our fiscal situation, and immigration. Most importantly, they demonstrate a rare impulse to take action to make it so. President Biden and members of Congress who care about Article I prerogatives should do everything they can to capitalize on that impulse by encouraging Congress to take back the power it needs to function for the American people. In doing so, they will protect our democracy and our climate at the same time.