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The Emergency Powers Flip-Flop
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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.

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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Andrew Egger

Andrew Egger is a former associate editor for The Dispatch.