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Today, @sensanders, @aoc, & @repblumenauer introduced a bill to require @POTUS to declare a national emergency based on climate change. The bill is well-intentioned, but it reflects a crucial misunderstanding of how national emergencies work. 1/20
In short, the bill wrongly links a national emergency declaration to a host of goals that can’t be accomplished with emergency powers. Achieving many of these goals will require Congress to pass new laws. The bill is an attempt to pass a buck that simply can’t be passed. 2/20
That’s harmful in two ways: it plays into dangerous misconceptions that emergency powers have no limits, and it lets Congress off the hook for providing the authorities and funding the president actually needs to accomplish the tasks the bill sets for him. 3/20
To elaborate… A declaration of national emergency doesn’t give the president whatever powers or funds he believes necessary to address a crisis. Instead, it unlocks specific authorities contained in more than 130 statutory provisions. 4/20
Most of these provisions become available during a “national emergency,” whether declared by the president OR Congress. So as a threshold matter, why does the bill direct Biden to declare an emergency, and not declare one itself? 5/20
More fundamentally, though, the bill doesn’t identify the specific emergency provisions that its sponsors think Biden should use. Instead, the bill presents a long list of goals Biden should achieve with those provisions. 6/20
I strongly support all of the goals identified in the bill. The problem is this: exceedingly few of them can be accomplished/implemented with the authorities Congress has made available for national emergencies. 7/20
Of the 130+ powers available in national emergencies, you can count on one hand (plus or minus a finger) the provisions that have any relevance to climate change. And even those powers don’t get you that far, as I wrote in the @washingtonpost: https://www.washingtonpost.com/outlook/2021/01/29/biden-climate-change-emergency-executive-order/ 8/20
Yes, Biden could temporarily suspend the export of crude oil and suspend leases for offshore drilling (assuming Congress allocated sufficient $$ to compensate leaseholders, as the law requires). But that doesn’t scratch the surface of what the bill's sponsors are asking for. 9/20
You can scour @brennancenter’s comprehensive list of powers available during a national emergency, but you won't find one giving Biden the authority and funds to “modernize and retrofit millions of homes, schools, offices, and industrial buildings." https://www.brennancenter.org/our-work/research-reports/guide-emergency-powers-and-their-use 10/20
Nor does any of these 130+ powers enable Biden to “establish new employment programs,” to “develop and transform the industrial base of the United States,” or to “create new public sector institutions, inspired by and improving upon New Deal-era institutions.” 11/20
If the bill's sponsors want Biden to accomplish all of the goals listed in the bill, Congress must pass authorizing legislation and sufficient funding. On the issue of climate change, a national emergency declaration doesn’t provide a magic short-cut. 12/20
(To be sure, some of the goals in the bill--for instance, the bill instructs Biden to prioritize racial/social justice and avoid solutions that would increase inequality--don't require new laws... but they don't require an emergency declaration, either.) 13/20
Again, I support the goals of the bill, and I’m truly grateful to @sensanders, @aoc, & @repblumenauer for their passion and longstanding leadership on this issue. But this time, I'm worried they’ve done the cause a bit of a disservice… 14/20
…because the bill signals that Biden can achieve the goals it specifies with an emergency declaration, i.e., without further action by Congress. That not only sets Biden up for failure; it lets Congress off the hook. 15/20
Some members might support a bill saying “You deal with it, Biden,” while hoping to avoid hard votes on funding/authorizations. This bill gives them cover. If Sanders/AOC think emergency powers can accomplish all of these goals, why is any further action by Congress needed? 16/20
I get it. Congress is full of climate deniers and members whose campaigns are bankrolled by oil companies. Getting Congress to act on this is going to be difficult, and it could take time we can't afford to lose. 17/20
But the solution isn't to pretend that a national emergency declaration gives the president powers he doesn't have. That just takes the pressure off Congress without giving the president the tools he needs. 18/20
Last but definitely not least, the bill reinforces the idea that statutory emergency powers give presidents a kind of legal carte blanche. The only way Biden could accomplish the goals in this bill using existing emergency powers is to stretch them beyond all recognition…19/20
…something we saw Trump do on more than one occasion. The notion that emergency powers are infinitely malleable is a false and dangerous one, and not one that lawmakers should be perpetuating, no matter how laudable the end goal. 20/20
