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March 20, 2020

Note From Elie: Wow — Can They Really Do That? Yes, They Can

Dear Reader,

The Bill of Rights, at its core, is about limits on government power.  We think about our cherished affirmative concepts like “freedom of religion” and “the right to privacy.”  But the actual text of the Bill of Rights is phrased almost entirely in the negative: “Congress shall make no law…,” “no warrants shall issue…,” and the like.  We Americans believe in the power of government — especially when that power is carefully limited. 

But we soon could see the power of our government fully unleashed, as the Coronavirus crisis pandemic spreads and public officials activate a series of largely unknown laws designed only for emergency use.  In the coming weeks and months, our government may do things that make us wonder: “Wow — can they really do that?” Oh yes, they can.

President Donald Trump formally declared a national state of emergency relating to the Coronavirus pandemic last week, on March 13.  Some criticized him for taking so long to make the formal declaration. After all, Trump’s own Department of Health and Human Service declared a public health emergency — a declaration with less sweeping legal impact than a national emergency — six weeks earlier, on January 31.

And Trump himself has previously declared seven other national emergencies, including a controversial 2019 declaration relating to the southern border with Mexico.

Belatedly or not, Trump has now activated a breathtaking array of laws that become effective upon a formal declaration of national emergency.  These laws together form a sort of shadow, underworld legal regime. They’re the laws we don’t talk about in polite company, the things they don’t teach you in law school.  The Bill of Rights — that’s the glamorous stuff, the parchment that’s on display behind glass in the Smithsonian. But these emergency laws lurk in dark alleys, largely unnoticed, but standing by for deployment in the most dire circumstances.

The Brennan Center for Justice helpfully compiled a list of over 120 federal laws that kick in when the president declares a national emergency.  Some of these laws are arcane or excruciatingly administrative. (One emergency law, for example, permits the president to waive the standard 30-day comment period for proposed rules and regulations under the Energy and Policy Conservation Act — a bureaucrat’s dream).


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Other emergency laws seem drastic but also, well, necessary.  These laws, while somewhat frightening by their very existence, make sense when you’re staring down a crisis like Coronavirus.  For example, one law permits the Secretary of Health and Human Services to authorize the use of unapproved drugs, devices, or biological products in a declared national emergency.  We can readily understand why, in a pandemic, we might want to allow people to administer and take a newly-developed antidote or vaccine, without waiting for the time-consuming FDA review and approval process. 

Another law permits the President to suspend provisions of the Clean Air Act and yet another suspends prohibitions on disposal at sea of potentially toxic materials, both in declared national emergencies.  Again, these laws sound scary but make sense. In a national health emergency, the government might need, in the name of the greater good, to dispose of contaminated materials in a manner that our environmental laws ordinarily would not permit. 

Beyond the public health arena, we have emergency laws designed for use in wartime or in response to terrorist attacks.  Suffice it to say, when we’re at war or under attack, almost anything goes.  One law — which does not require a formally declared national emergency as a prerequisite — enables the federal government to speed up private manufacturing of medical supplies and other essential goods.  (President Trump reportedly has considered invoking this law).  And in a declared national emergency, the federal government can take over certain airports, requisition certain ships, or throw people out of their homes with nowhere else to go.

Among these fairly intuitive emergency measures lurks a subset of laws that are downright bizarre.  One law permits the government in a declared national emergency to use the Barro Colorado Island in the Canal Zone’s Gatun Lake, which ordinarily must be left in a “natural state for scientific observation and investigation,” for other (ominously) unspecified purposes.  I think this was loosely the plot for an infamously memorable Marlon Brando movie.  The mind reels.

Another law permits the government in a declared emergency to suspend the vehicle weight limit on Interstate 95 between Augusta and Bangor, Maine for bulk shipments of jet air fuel to an Air National Guard Base.  What the heck is happening up in Maine? And why just Maine? What about all the other military bases in the United States? 

I point out these laws in part because it’s interesting (perhaps mildly amusing) to know that they’re on the books.  More importantly, we need to know that even our own government, founded on a fundamental principle of limitation, of “shall-nots,” can legally do some mind-boggling things if and when absolutely necessary to protect the public.  The existence of these laws reminds us that — as much as we love limited government — in an emergency, virtually everything is on the table.

Stay informed and stay safe,

Elie

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