The Emergency Powers Flip-Flop

Congressional Democrats worked to limit presidential emergency powers after Trump's border-wall gambit. They've been far less alarmed by Biden's unilateral cancelation of student debt.

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One frequent obstacle to passing good-government legislation is perverse incentive. Fighting abstract dysfunction can win bipartisan support, but fighting dysfunction that benefits your party is a tough sell. Consider how Democratic emergency-powers hawks have responded to President Joe Biden’s student-debt forgiveness jubilee.

In 2019 a significant bipartisan appetite for legislation to curtail the president’s emergency powers developed. That’s when President Donald Trump tried to use such powers in an effort to fund his border wall after Congress refused to appropriate the money. The 136 emergency powers in federal law exist to allow the president to temporarily assume Congressional prerogatives in crises where time is of the essence. But as the border-wall situation showed, only one rickety mechanism—a veto-surmounting two-thirds vote in both houses—restricts the president’s ability to declare nearly anything he deems important a national emergency. This massive loophole allows an unscrupulous executive to short-circuit Congress and act alone on a range of issues.

In 2019 Republican Sen. Mike Lee’s ARTICLE ONE Act proposed to flip the national emergency system on its head, with emergencies expiring automatically after a short period unless Congress voted to extend them. A number of Democrats, with Trump’s border-wall action on their minds, joined the effort. In the current Congress, Democrats have been the prime movers for these reforms, successfully working them into Rep. Adam Schiff’s Protecting Our Democracy Act, which passed the House last December. (It has yet to be brought forward for a vote in the Senate.)

In June, a bipartisan group in the House submitted similar language as an amendment to a piece of must-pass legislation, the 2023 National Defense Authorization Act (NDAA). Although the Rules Committee ultimately decided not to bring the amendment forward for a vote, the move underscored the point: Here, apparently, was a group of lawmakers genuinely concerned with the president’s ability under current law to go around Congress on issues he unilaterally deems to be of emergency importance. Joining Schiff as Democratic cosponsors for the NDAA amendment were Reps. Peter DeFazio, Steve Cohen, Veronica Escobar, and Elissa Slotkin. 

During the 2019 Trump border wall fight, each of these lawmakers had taken specific issue with Trump’s reckless invocation of emergency powers. DeFazio decried Trump’s “unconstitutional power grab.” Cohen warned that it “threatens the Constitution’s separation of powers,” since “Article 1 gives Congress the power of the purse, not the president.” Schiff insisted Trump was “claiming an authority he doesn’t have” in a “plainly unconstitutional” act. Escobar said Trump had “decided to grossly defy our system of checks and balances.” Slotkin was more restrained, expressing only “deep concerns” about Trump’s “decision to break with historical precedent” and bypass the “democratic system of compromise.”

Last week, a different president, Joe Biden, flexed a different set of national emergency powers, announcing he would wipe up to $20,000 off the balance of every American with federal student debt. The Justice Department argued Biden had “sweeping authority” to do so under the 2003 HEROES Act, which empowers the secretary of education to provide debt relief to any individual who “suffered direct economic hardship as a direct result of a war or other military operation or national emergency.” The national emergency, in this case: the COVID pandemic.

This was easily as tortuous a justification as that supplied by Trump three years ago. The plain intent of the HEROES Act was to enable disaster relief in particular cases, not to enact sweeping changes to nationwide debt policy. There’s no doubt that the pandemic generated widespread economic harm, but at no point did that harm disproportionately affect holders of college debt. At the same time, college debt holders have already experienced one major piece of dedicated COVID relief: the yearslong suspension of their debt payments, a benefit not afforded to holders of other kinds of debt. Plus Congress has already authorized more than $2.5 trillion in spending to ameliorate that harm in multiple pieces of legislation across multiple years.

But student debt forgiveness is a Democratic base issue, so it was not particularly surprising that the party’s erstwhile emergency-powers hawks passed over their Trump-era compunctions in favor of responding like this.

DeFazio: “I support the Biden admin’s federal student loan forgiveness.”

Cohen: “Today’s targeted student debt relief will lower costs for millions of working Americans.”

Schiff: Biden’s cancellation was “a huge accomplishment. Still, I’d love to see him do more. Canceling $50,000 for all would fire up our economy and keep doors of higher education open to all. Let’s get this done!”

Escobar: “This is an important step to bolster and grow the middle class; I’m thrilled to see it!”

Here, too, Slotkin was an outlier, saying she was “happy for the folks who will get relief from this policy” but that “this is a one-time bandaid that doesn’t get to the root of the problem.” But neither did she call out Biden’s invocation of emergency powers to accomplish the action.

It’s possible that these lawmakers decided there was no political incentive to rock the boat on a move they supported on the merits. After all, there’s nothing more they could do legislatively to prevent Biden from taking this unilateral action—one which, if Congress had gotten its act together and passed the bills they’ve been pushing for months ago, Biden might never have been able to take at all.  (Even given this charitable construction, Schiff’s statement stands out as particularly egregious, actively calling on Biden to double down on the move.) 

Some Republicans who have worked with these Democrats on emergency-powers legislation were less than impressed. “Presidents love abusing their emergency powers, and many members of Congress are more than happy to look the other way when that abuse is in service of a policy they support,” said Rep. Peter Meijer, who served as Republican co-lead on another bipartisan legislative vehicle for emergency powers reform, the National Security Reforms and Accountability Act. “I’m not at all surprised that Democratic members of Congress are amenable to this abuse of emergency powers—to act in a way consistent with their prior-held beliefs would be unpopular and difficult to communicate to their base, so they fall in line.”

None of these Democratic lawmakers responded to multiple requests for comment, so the most important question remains unanswered: Will Democrats continue their push for the closing of this significant imbalance in favor of unilateral executive power? Or, having acquired a taste for their own policy victories accomplished in this way, will they be content to slip back into the status quo?

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  1. Ryan King

    Great article Andrew!!

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    Marc Frischhertz

    And the same flip flop exists for republicans. They are all hypocrites

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    BrettH

    Hey look, partisan hacks acting like partisan hacks when control of the executive branch changes hands.

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  4. Halvor

    Mr. Egger could have been more clear about the fact that the 115th Congress didn’t use the Republican trifecta to end or limit the POTUS powers that had been authorized by previous Congresses. Were TD writers then scolding that Congress?

    POTUS can sign orders, but SCOTUS has a say, and Congress can revise its delegations of power or immediately stop the money. Caesar isn’t marching on the Republic.

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    rlritt

    Are you guys still on about student loan debt? If you think about it, the money has already been paid out. It's not they are giving them more money. And it's a select few. My son didn't get his student debt cancelled.

    And if you figure some of that debt won't get paid back anyway and it will come over years of payments, which will be mostly interest on the money, why worry about it. It might have been better if they just cancelled the interest. In any event, he did it by executive order because it was faster, it made a big splash, and if and when the court overturns it, he can say he tried but was stymied by Republican appointed judges. It's all politics and Biden has had years of experience playing the game.

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    George.Skinner

    It's poignant to think that an American system of government modeled after the Roman Republic seems to be following the same trajectory towards authoritarianism. The Roman Republic started to falter when people lost confidence in the ability of institutions to function, leading to a clamor for a dictator or imperator to take control. When Augustus finally took power as Caesar, it even worked out fairly well for a while, with the empire prospering for at least the first 6 emperors. The same thing is happening now, with Congress abrogating its responsibility to legislate and people looking to the courts or the executive to achieve things. An interesting question would be whether America already made its jump to the imperial phase with the rise of the strong presidency back in the term of FDR, or if it's jumping straight to a Nero with Trump.

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    Azlefty

    I have mixed feelings about the debt relief, but I agree this is a bad way to do it. The Congress has ceded way too much of its power to the executive branch because, or maybe the result being, they don't want to do the hard work of hammering out legislation. I was hopeful that Biden as a long-term member of the Senate would have been in favor of restoring some authority to Congress after the excesses of the previous administration but it was not to be. That said, there have been several bipartisan legislative achievements lately.

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    PaulH

    Charlie Cooke has an interesting piece over on National Review arguing that Congress should impeach Biden over this action. In general I have been dreading the thought of a GOP controlled House impeaching Biden because I thought it would be an obviously political tit-for-tat response to the Democrats' very political impeachments of Trump (even if the second one was justified). On the other hand, I think Biden's action is clearly illegal, clearly an abuse of power, clearly very significant ($500 Billion is not chump change) and there may not be a judicial remedy. So maybe impeachment is appropriate.

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    1. cb76

      "maybe impeachment is appropriate"

      Appropriate or not it's still going to happen just as soon as a Republican house gets sworn in at the end of January 2023, and probably continually for the next two years after that. It will go nowhere in the Senate, of course, but that didn't stop all those Obamacare repeal bills from coming out of the House during Obama's second term.

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        PaulH

        I think there is definitely support in the GOP House caucus for an impeachment just for the sake of an impeachment. McCarthy, no political genius, has been smart enough to keep that talk tamped down during election season -- but the likelihood that he will remain resolute come January seems low. The existence of a real basis for impeachment makes and impeachment even more likely -- though, as you say, it will fail in the Senate and is probably a losing issue politically.

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    Rajeev

    This argument needs to go back far further to examine congressional misuse of its own powers before examining the Executive branch overstep. When Congress passed the Authorization for Use of Military Force of 2001 (AUMF), it decided it would use that act as a blanket way to never have to authorize funds for new conflicts and avoid any engagement on the issue of counter-terrorism spending.

    Congress used that bill to avoid any votes on spending against groups that were never intended under the original bill. Presidents (including Obama & Trump) have used the AUMF to spenf resources and engage militarily against groups unrelated to 9/11 or anything encompassed in the original bill.

    As long as Congress gets to pick and choose when to both perform its responsibilities and defend its authority no one should be surprised when the Executive branch goes unchecked.

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    Ed P

    I mean, its not a duly passed piece of legislation and I don’t think its wise policy.

    But to put this on the same plane as Trump’s power grab over the border wall is not rational.

    Trump’s border wall power grab, one of a huge number of expansions of executive power was so offensive because it enacted policy explicitly rejected by Congress immediately beforehand.

    I’m not saying this policy or its enactment is immune to criticism. It should be criticized and challenged in the courts. But it is not anything remotely close to authoritarian or Trumpian. Meanwhile, Biden has made in central policy to lower the temperature, to downgrade the role of the President in American life which has limited his power as compared to his predecessor.

    Please.

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      Andrew Egger

      This is a distinction without a difference. The Constitution does not distinguish between Congress choosing not to enact legislation when the president is insisting they pass it and choosing not to enact legislation at any other time. A policy isn't the will of Congress until Congress passes it, period, and both Trump and Biden have now misused emergency powers to ignore that inconvenient fact.

      I'm actually inclined to agree the two actions are not on the same plane. Trump used his national emergency declaration to misappropriate about $8 billion Congress never appropriated for the purpose. The price tag on Biden's action will be something like 50 times as large.

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        Ed P

        Perhaps in a purely legal sense

        But in regards to our nations path towards authoritarianism and unbridled executive power, it makes an enormous difference.

        Trump had the nation on course straight to authoritarianism, and the border wall BS was a prime example.

        Biden has made it a central policy to reverse that trend. And we should all be very thankful and appreciative that we DO NOT have an aspiring dictator at our helm.

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      PaulH

      I don't think the distinction between Trump's action and Biden's action is that strong. Congress has been talking about debt relief since Biden was elected and has enacted very large spending bills related to the COVID crisis. I think that it is pretty clear that this action -- like Trump's -- would not pass Congress.

      Of course there is also the issue of the sheer magnitude of the action.

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        Ed P

        Perhaps we should consider these actions did not occur in vacuums and that Trump and Biden are extremely different Presidents.

        There are 1,000,001 data points indicating Trump’s authoritarian capacity and desire. Meanwhile, Biden has been squarely an institutionalist, despite this counterexample.

        Trump’s border wall was part of a policy appeared to me to be abusive and ugly and unAmerican, with the separation of families seeking asylum and a de facto Muslim ban.

        There is nothing remotely analogous to that in this policy.

        All that being said, I hope the courts do overturn this. Just like they SHOULDVE overturned Trumps wall gambit and his Muslim ban, but instead gave wide deference to fig leaf arguments.

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          PaulH

          I guess I don't consider the context relevant when evaluating whether or not an action was constitutional. The rules are the same for good guys and bad guys.

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            Ed P

            Absolutely, the rules should be applied the same but I disagree that context and intent are unimportant. Of course they are. But I doubt the rules will be applied the same anyway.

            The conservative majority court gave Trump all the deference in the world. For example, Trump explicitly called for a Muslim ban, clearly indicating an intent to create a policy of exclusion based on religion. Clearly unconstitutional. But he weaseled his way to victory with obvious fig leaf BS. Not too different than the fig leaf BS Biden will attempt to use to get this policy through the courts.

            But Scotus will likely shoot this down 6-3 (and they should).

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      Ed P

      …Trumps border wall itself was a decisive cudgel that Trump used to divide the nation.

      Debt relief during Covid to preferred constituents is ugly, but its what generally occurs in government. When Republicans held more power, relief was going nearly entirely to business owners.

      I would argue this episode is much more analogous to Trump’s aid to farmers, ugly but not nearly on the same power-graby plane as the border wall fiasco.

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