It’s a tale as old as time. A leader wants to do something, but it’s outside their delegated powers. So they declare an emergency when there isn’t really much of an emergency or extend the period of “emergency powers” longer than necessary.
It does make sense to have emergency powers built into a state or national constitution. But when, how, and for how long they can be used should be tightly defined and those norms respected.
Examples of emergency powers being abused go as far back into human history as we have records. An early notable example is when Julius Caesar led his army across the Rubicon River in 49 BC. His rival general, Pompey, and Pompey’s allies in the Senate went to war with Caesar over this illegal act. When Caesar won the civil war, he was given emergency dictator powers to reestablish order. But Caesar had these powers extended from one year to 10 years, and then, in 46 BC, he made himself “dictator for life.” And this, in short, is how the Roman Republic became the Roman Empire.
Napoleon Bonaparte made very similar moves by creating chaos, then giving himself temporary emergency powers to restore order, then being declared permanent emperor of France — making the French Republic the French Empire. Adolf Hitler, of course, did the same, using the Reichstag Fire in 1933 as justification for sidelining the parliament, banning all other political parties, abolishing freedom of speech and the press, and consolidating all power in his cabinet.
These are the most extreme and obvious historical examples, but lesser abuses of emergency powers happen in our country at the state and federal level, by both Democrats and Republicans, fairly frequently.
Cooper and COVID
During the COVID-19 pandemic, many leaders across the country at all levels of government used whatever emergency powers had been granted to them by their respective constitutions or charters. In North Carolina, former Gov. Roy Cooper declared a state of emergency on March 10, 2020. This allowed Cooper, a Democrat, to take many actions without having to run them by the Republican state legislature or the mixed-party Council of State. His intentions, I’m sure, started out largely like every other governor across the country, to quickly and efficiently address a serious disease that health officials were just starting to learn about.
But partisan differences in how to respond quickly emerged — with Republicans not nearly as enthusiastic about vaccine and mask mandates, or about shutting down schools. And because of the emergency declaration, the Republican legislature was often powerless to check Cooper’s power, despite having majorities in both chambers. It was not until about two and a half years (888 days) later on Aug. 15, 2022, that Cooper ended the state of emergency, long after many other governors.
The Republican legislature, in response, put in place additional limits to the emergency powers of North Carolina governors. Effective Jan. 1, 2023, if a North Carolina governor wants to extend a state of emergency in two thirds or more counties for longer than 30 days, they must have the concurrence of the Council of State (the body of officials that includes the governor, as well as the attorney general, lieutenant governor, treasurer, commissioner of labor, and leaders of many other major executive branch departments).
With varying levels of success nationally, progressive leaders have pursued emergencies to protect abortion rights when Roe v. Wade was overturned, on gun violence, on climate change, on racism, and on student loans. Thankfully, much of this emergency rhetoric was largely for show, or simply didn’t have the power behind it to succeed. Cooper declared a state of emergency around education funding in North Carolina and used a red alert banner across the official governor’s website but did not actually attempt to use emergency powers.
But Democrats are not the only ones in this country that push the bounds of their authority using emergency powers.
Soon after Inauguration Day of his second term, on Feb. 1, President Donald Trump declared national drug and immigration emergencies under the International Emergency Economic Powers Act (IEEPA) of 1977 to justify imposing tariffs on Canada, Mexico, and China. The tariffs would be used to negotiate with the nations and as a response to their respective contributions to trafficking into the United States. IEEPA up to this point had been used almost exclusively to respond to foreign policy emergencies, like the Iran Hostage Crisis or the Sept. 11 attacks.
Then later in the year, on April 2, Trump announced more tariffs, again using IEEPA as the legal avenue, on countries around the world. The emergency this time was a persistent trade deficit, where other nations were buying fewer of our goods than we were buying of theirs. As my colleague Mitch Kokai has pointed out, this is not a new (or even a bad) thing, but has been the status quo since 1975. And, as Kokai quotes from an economic textbook, “rapid economic growth and an attractive investment environment — both of which are generally associated with a strong economy — are major causes of trade … deficits.”
As it happens, wealthy nations with strong economies often buy much more from poorer nations (because they have more money to spend), then poorer nations can buy from them. It’s safe to say, an economic reality over many decades experienced by the wealthiest nation in the history of world (who has in that time created miracles of technology and standards of living that prior generations had never dreamed of) is not the kind of emergency envisioned with IEEPA.
And crime levels in America’s major cities are also not at emergency levels, despite many horrific and tragic incidents. Violent crime has actually plummeted since the 1990s, when there was a serious gang violence epidemic. Yet Trump has declared, or is threatening to, declare a state of emergency over crime in Washington, DC; Chicago; Portland, Oregon; Memphis, Tennessee; and other cities, and to send in the National Guard.
Crime is out of control is parts of these cities, but the law states that if a governor does not request or approve National Guard to be used in his state, then it would take an extreme emergency, at the level of an insurrection, for the president to override that. No president has sent in troops without a governor’s approval since 1965, when President Johnson sent troops to Alabama to protect a civil rights march. This came after “Bloody Sunday,” when another march in Alabama had been brutally attacked by state and local officials with billy clubs and tear gas.
The rarely used section of federal Armed Forces statute below allows overriding a governor’s wishes on the National Guard if “the President is unable with regular forces to execute the laws of the United States.” Trump’s justification for using this (created to be used in times of national emergency like invasions or civil war) was that protesters disrupting ICE’s ability to conduct raids “constitute a form of rebellion against the authority of the Government of the United States.” In other cities, he has simply used high crime rates as justification.
A week ago, the Charlotte Fraternal Order of Police also requested the National Guard to be sent to their city to help get crime under control. If the governor approves — like happened in Trump’s deployment to Memphis, Tennessee — great. Police are stretched very thin, so maybe that would be a help. But if not, National Guard deployments to the Tar Heel State, or any state, over the objections of the governor, unless there is imminent catastrophe, violates the spirit, and maybe even the letter, of emergency powers laws.
No matter what party or what level of government, we should call this out when we see it.