A Chance for the Courts to Rein in Governing by Emergency
The Presidential Reform Project’s Bob Bauer and Jack Goldsmith were mentioned in this article on Lawfare. An excerpt can be read below.
Of course, Congress is hardly blameless in allowing this to happen. It could and should pass reforms to the NEA that already have significant bipartisan support and that would require approval from Congress before an emergency declaration could continue after a set period of time. As Bob Bauer and Jack Goldsmith noted recently here in Lawfare, NEA reform is ripe for action this Congress. But in the meantime, the Court should pay special attention to its own role in preventing exercise of emergency powers that are beyond what Congress intended to authorize. The history and text of congressional emergency delegations demonstrate that Congress intended to give the executive branch the ability to respond to unforeseen events with immediate short-term action that Congress is ill suited to address. But it did not intend to cede power to the president or the courts to govern by permanent emergency decree—a condition that the framers of the Constitution identified as a recipe for tyranny. As our briefs argue, the Court should adopt an approach to reviewing executive emergency actions that gives full effect to Congress’s purpose in delegating emergency authority and that ensures that neither the executive branch nor the courts themselves supplant the legislative process contemplated by the constitutional system of checks and balances.