Opinion | Congress has given the president too many emergency powers
In his student debt forgiveness plan, Mr. Biden cited a provision of the 2003 Higher Education Relief Opportunities for Students Act (Heroes Act), which authorized the executive branch to “waive or modify” the rules on repaying student loans during a war or “national emergency.” Mr. Biden maintains that there is a national emergency — the coronavirus emergency President Donald Trump declared in March 2020 — and that it necessitates financial help for millions of borrowers. Two lower appeals courts have disagreed and have enjoined the program, which is why the administration sought the Supreme Court’s intervention.
It’s high time that the justices render a definitive ruling on the president’s aggressive reading of the Heroes Act. This is not only because his plan, which would grant up to $20,000 per person in debt forgiveness, is a highly questionable use of public resources, the benefits of which are poorly targeted in terms of actual need, and the costs of which are likely to fuel inflation. It is also contrary to the separation of powers for Mr. Biden to tap such a colossal amount of public money without proper authorization from Congress.
There are times — war, pandemic, natural disaster — when crisis strikes suddenly and mobilization of public resources must be swift. And yet national emergencies can be “a ready pretext for usurpation,” in the memorable words of Supreme Court Justice Robert H. Jackson, and “emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them.” Today, 136 laws give the president special powers when he or she declares a national emergency — and there are some 42 declared national emergencies currently in effect, according to studies by the Brennan Center for Justice.
These range from the well-known — the coronavirus emergency — to the obscure: President Barack Obama’s 2014 declaration of an emergency calling for sanctions on the authors of human rights violations in the Central African Republic. Since 1979, there has been an “emergency” due to the “unusual and extraordinary threat to the national security, foreign policy, and economy of the United States constituted by the situation in Iran.” This is the legal basis for many U.S. sanctions against that country’s regime; Mr. Biden extended it on Nov. 14.
We do not mean to overstate the problem. The Stafford Act, under which Congress gave the president power to spend funds and deploy federal personnel in response to national disasters, works reasonably well: The criteria for its invocation are loose, but the scope of presidential action it authorizes is fairly limited. Though artificial, the use of “emergency” power to invoke and extend economic sanctions for foreign policy purposes — sometimes for years — stems from the technical requirements of a particular statute, the International Emergency Economic Powers Act (IEEPA).
The IEEPA is by far the most common statutory authority for current presidential national emergency declarations. Congress has, by and large, acquiesced to presidents using the law to impose sanctions. Nevertheless, it creates transparency and candor issues: We face a chronic challenge from Iran, not a sudden one. Congress should create a system spelling out the criteria whereby the president has latitude to impose sanctions in a crisis, and for how long the White House can impose them without subsequent congressional action.
Given how much executive authority lies tucked away in the interstices of federal law, just waiting to be exploited, it’s remarkable that presidents have not abused it more blatantly. Still, the potential for mischief is real. In February 2019, Mr. Trump declared a national emergency due to illegal immigration flows at the U.S.-Mexico border as a pretext to divert defense funds toward the construction of a border wall that Congress had refused to authorize. Congress was powerless to stop this power grab; its only recourse was to pass a bill halting the diversion, which Mr. Trump vetoed. Congress failed to override the veto. The Supreme Court was poised to rule on the issue in 2021, but Mr. Biden came into office and decided to end the funding diversion, and the justices dropped the case.
Now they have an opportunity to weigh in on a different form of potential executive overreach: Mr. Biden’s student loan forgiveness. If recent past cases are any guide, the justices are likely to look askance at it. Previously, they struck down a ban on evictions that the Centers for Disease Control and Prevention had imposed to prevent the spread of the coronavirus; the court said that was too much of a stretch of relevant public health laws. Citing similar concerns, the justices blocked the Biden administration’s vaccination-or-testing requirement for large company workforces.
Whatever the court decides, the federal judiciary should not be taking the lead policing presidential emergency powers. Congress should. The last attempt at reform came in 1976; the National Emergencies Act wiped out emergency authorities then on the books and tried to limit new presidential declarations. The accumulation of confusing, obscure or seemingly indefinite “emergencies” since then shows that new legislation is called for. Whether in public health, national security or natural disasters, Congress should tailor a tighter fit between the nature of the emergency a president may declare and the powers that declaration entitles the president to wield. Also, there should be enforceable time limitations.
Encouragingly, there is bipartisan interest in the matter. Both Sens. Mike Lee (R-Utah) and Chris Murphy (D-Conn.) have sponsored bills; a House judiciary subcommittee held hearings in May, at which the progressive Brennan Center and the conservative Heritage Foundation gave expert testimony. The national emergency surplus is not a national emergency itself — yet. Lawmakers should act long before it gets to that point.
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