Protect Democracy Files SCOTUS Briefs Asking Court to Scrutinize Emergency Powers

Protect Democracy has filed amicus briefs in two cases at the Supreme Court concerning uses of emergency powers purportedly related to the Covid-19 pandemic. One is Biden v. Nebraska, involving the Biden administration’s student loan relief program. The other is Arizona v. Mayorkas, concerning the administration’s effort to terminate the use of emergency powers as the basis for sidestepping asylum laws and otherwise limiting immigration at the Southern border. 

In both briefs, Protect Democracy urges the Court to consider these cases using a framework that gives effect to Congress’s intent in delegating emergency powers to the executive branch, which is to give the president the ability to act quickly to address unforeseen events that require an immediate response, but not to allow the executive branch to supplant Congress’s role in addressing long-term policy matters. Protect Democracy also urges the Court to refrain from usurping the executive’s role in deciding when to stop using emergency powers by denying efforts by a group of states to force the administration to continue using the pandemic as a basis for overriding immigration laws after it has determined that the pandemic no longer justifies doing so. As Justice Gorsuch (joined by Justice Jackson) wrote in his dissent from the decision to hear the case: “[T]he current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”

In a Lawfare piece, Protect Democracy explained that both cases reflect a worrying trend toward using real or manufactured emergencies to address long-standing policy problems, a pattern exacerbated by President Trump’s  declaration of a national emergency at the Southern border to override congressional refusal to fund a border wall at the levels he requested:

Policy merits aside, both cases involve efforts to leverage special powers delegated to the executive branch for use in national emergencies to address distinct long-standing problems that are not the result of the pandemic emergency, bypassing Congress in the process. Such executive actions are increasingly common given the perceived ease with which presidents deploy emergency powers and Congress’s inability to address complex problems. President Trump’s declaration of a national emergency for the specific purpose of overriding Congress on funding for a border wall was an ominous harbinger of this trend.

Protect Democracy has long been concerned about the role of “emergencies” and the use of emergency powers to aggrandize executive power. In 2019, Protect Democracy, along with a cross-partisan counsel team, filed a lawsuit to block President Trump’s national emergency at the southern border in El Paso v. Trump. That case was mooted two years later when President Biden took office and canceled the underlying emergency declaration.

“Uses of emergency powers to address problems that do not qualify as emergencies – sudden or unforeseen events that require an immediate response – or to achieve policy goals that are unrelated to the declared emergency are improper executive power grabs that threaten democratic government,” said Kristy Parker, counsel for Protect Democracy. “Protect Democracy urges the Court to adopt an approach to reviewing uses of these powers that respects both Congress’s intent in delegating them and the separation of powers.” 

Protect Democracy has also advocated for Congress to do its part to reassert its proper role by advocating for reforming the National Emergencies Act, the umbrella statute that allows the president to access a multitude of powers through emergency declarations. In May 2022, Protect Democracy’s Soren Dayton testified to the House Judiciary Committee on the urgent need for reforms and the consensus in Congress to take action. Protect Democracy is also a leader within a broad coalition to make that reform a reality.

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