Fortifying American Emergency Power: A Multinational Comparison to Contain Crises.

• Author: DeVore, Courtney

TABLE OF CONTENTS I. INTRODUCTION 1688 II. THE PROBLEM 1690 III. THE TENSIONS POSED BY EMERGENCY POWER 1695 A. Preventing Abuses of Power 1696 B. Ensuring Effective Responses to Emergencies 1698 IV. MULTINATIONAL DISCUSSION 1699 A. Defining the Actor Responsible for Leading Emergency Responses 1700 1. Systems in which the President Controls Most Emergency Power 1704 2. Minister Control: Systems Empowering Ministers to Respond to Emergencies 1705 3. Legislature Control: Systems that Require Legislative Action in Times of Emergency 1706 B. Codification 1707 C. Availability of Judicial Review for Emergency Action 1711 D. Summary of Safeguards 1715 V. SOLUTION 1717 A. Legislating with Specificity 1718 B. Requiring Consensus Among a Multi-Member Body 1720 VI. CONCLUSION 1724 I. INTRODUCTION

Exercises of emergency power are sometimes necessary to protect national security. By temporarily suspending the normal rule of law, emergency power allows governments to rapidly respond to crises. However, the use of emergency power often comes at the expense of individual rights and liberties, especially when used outside the realm of imminent danger. (1) If wielded frequently or improperly, emergency power will erode the rule of law. It creates perverse incentives, allowing government officials to usurp the political process and unilaterally expand their own power at the cost of individual freedom. (2) Emergency power provides a quasi-legal scheme for the degradation of individual rights.

On the flip side, a failure to effectively utilize emergency power in times of crisis jeopardizes national security and human lives. When emergency power regimes lack coherence, officials may be unable, or perhaps unwilling, to use them in dire situations. The great potential of emergency powers to protect a country from an imminent, dangerous situation is eroded when government officials fail to use them effectively. The risks associated with emergency power are immense.

This problem is especially pronounced in the United States. Former President Donald Trump, in various instances, was criticized for both unjustified and ineffective uses of emergency power. He used emergency powers to build a border wall despite substantial political opposition, even within his own political party. (3) His administration's response to the national emergency caused by the COVID-19 pandemic was ineffective; the response lacked coherence and was fundamentally unable to stop the spread. (4) In both of these scenarios, President Trump's actions revealed the troubles of the US emergency power regime.

While the Trump administration revealed the problems with emergency power in the United States, the problems are not unique to the United States. This Note evaluates the form and function of emergency power systems across the globe to identify the most effective safeguards, ultimately recommending a system that protects the rule of law while also providing for effective governance in unprecedented circumstances.

This Note proceeds as follows. Part II describes the global concerns associated with emergency powers, tracing governmental responses to emergencies in various countries. These responses illustrate the challenges of emergency power structures and set the context for why reform is vital. Part III provides the framework for analyzing exercises of emergency power, describing the tension between respecting individual rights and protecting national security. Part IV discusses emergency power structures across the globe--the safeguards, risks, and benefits. Part V proposes a solution to emergency power problems: specific legislation and a multi-member body that prepares for and advises on national emergencies. Taking inspiration from the German model, this Note proposes a highly codified system for emergency power that protects the rule of law in the age of modern emergencies. Part VI briefly concludes.

2. THE PROBLEM

   On February 15, 2019, President Donald Trump declared a national emergency concerning the southern border of the United States. (5) President Trump alleged that unlawful migration of criminals and gang members at the southern border presented a crisis that threatened "core national security interests and constitute [d] a national emergency." (6) The president acknowledged the "longstanding" problem of "large-scale unlawful migration" but claimed that the situation had worsened in recent years. (7) The president's declaration was pursuant to the National Emergency Act (NEA), which grants access to a variety of laws that are normally dormant. (8) Pursuant to these laws, the president diverted funds from other departments and federal programs to construct a border wall between the United States and Mexico. (9)

   The emergency declaration and subsequent diversion of funds were extremely controversial. On the campaign trail, President Trump promised to construct a border wall between the United States and Mexico at Mexico's expense. (10) He tweeted disparagingly about Mexican immigrants: "They're bringing drugs. They're bringing crime. They're rapists." (11) Meanwhile, Mexico continually refused to pay for the wall. (12) Once President Trump took office, he attempted to secure congressional funding for the wall. (13) But when Congress failed to pass legislation to build the wall, despite Republican control of both houses for two years, President Trump threatened to declare a national emergency to start construction--a threat that he followed through on. (14)

   Given this context, many Americans felt that President Trump declared a national emergency to usurp the political process and legislate his animosity against Mexico, as well as against Hispanic and Latino Americans. (15) In addition to experiencing political and emotional dissatisfaction with the president's decision, many Americans were stunned that the president possessed the unilateral power to legislate his own policy preferences so easily. (16) Congress promptly passed a resolution to terminate the emergency declaration, but President Trump vetoed the resolution. (17) Congress lacked the two-thirds support necessary to overturn the veto, so the state of emergency remained, (18) and President Trump continued to possess broad emergency powers. (19) Because President Trump acted under congressional authorization through the NEA, litigation was futile from the start. (20)

   Thousands of miles away in France, emergency declarations also have a history of controversy. In 1961, the French president declared an emergency during the Algerian war. (21) The escalated crisis arguably existed for only four days but the president exercised emergency powers for five months. (22) The emergency powers increased police power and circumvented normal rules. (23) In 2015, the French president declared a national emergency related to a terrorist attack; the government then conducted intrusive searches and imposed restrictive house arrest requirements on Muslim individuals in a discriminatory way. (24) Beyond allegations of discrimination, critics also maintain that the actions taken pursuant to the emergency declaration were too expansive, eroding the rule of law. (25) Law enforcement conducted 3,200 searches authorized through the emergency declaration, which many argue was a disproportionate response to the stated emergency. (26)

   The national emergency declarations at the US southern border and in France are examples of leaders harnessing emergency powers beyond what is necessary to respond to an emergency situation. The border wall is an extended project that will require continued funding and support--placing America within a state of emergency for an extended period of time. (27) The crisis in France was handled in a discriminatory and overly-expansive way. (28) These exercises of power are contrary to the notion that emergency power should be exercised in discrete moments with the normal state of affairs resuming as soon as possible. (29) These emergency declarations demonstrate the broad danger with large delegations of emergency power--that leaders may unilaterally usurp the legislative process to enhance their own power.

   A little over one year after President Trump's emergency declaration at the Southern Border, he declared an emergency once more--this time in response to the COVID-19 pandemic. (30) While China had been battling COVID-19 for months, the Trump Administration downplayed the risk of global spread. (31) Before long, countries across the globe began taking measures to contain the virus. (32) Some countries legally mandated lockdowns, others--including the United States--simply encouraged their citizens to stay home. (33) President Trump did not coordinate a national response to the pandemic, and the US response to COVID-19 can now be characterized as an utter failure, with thousands of deaths a week. (34) For a country with such vast emergency power and a president unafraid to use such power in politically convenient moments, the United States failed to effectively manage the virus, support healthcare needs, and protect the citizenry.

   Every day, the news reports another way in which the Trump Administration failed its people. (35) For example, health officials can muster no reasoning for why the Trump Administration refused to purchase a sufficient stock of vaccines from one manufacturer, even when given multiple opportunities to do so. (36) As President Trump approaches his final days in office and continues his failed Operation Warp Speed, other countries have bought up the vaccines and states struggle to implement an effective vaccination rollout. (37) The US emergency power system is not only ripe for abuse--seen through the Southern Border--this Note argues that it is also ineffectual--seen through the failed response to the COVID-19 pandemic.

   A sharp contrast exists across the globe. In New Zealand, Prime Minister Jacinda Ardern imposed significant emergency restrictions in...