Trump recently renewed the terrorism state of emergency, which is just one of roughly 30 ongoing national emergencies in the U.S.
President Bill Clinton declared terrorism a national emergency precisely 24 years ago, as a wave of Palestinian suicide bombings in Israel imperiled peace talks between the two sides. Executive Order 12947 named groups whose activities, Clinton said, posed “an unusual and extraordinary threat” to U.S. national security. At first, that list was largely limited to Palestinian armed groups, but in 1998, Clinton added Osama bin Laden and al-Qaeda to the list. Bin Laden is gone and the peace process is moribund, but a version of the state of emergency remains in effect. In fact, Donald Trump renewed it just last week.
But many of these issues are probably more accurately described as a “state of problem” rather than as a “state of emergency.” The common-usage meaning of emergency as something sudden, extraordinary, and, above all, temporary should be an important prerequisite to letting the president bypass Congress. It’s useful for the executive to have access to emergency powers in cases, say, when the legislature doesn’t have time to pass a law to help deal with an immediate, genuine threat or natural disaster. Over time, though, it undermines constitutional safeguards to keep giving the president extraordinary powers in circumstances that have long since become ordinary.
“States of emergency that last decades are not only a linguistic oxymoron,” Fionnuala Ní Aoláin, a professor at the University of Minnesota Law School who serves as a special rapporteur on countering terrorism to the United Nations Human Rights Council, told me. “They function to degrade the rule of law, often consolidate executive powers imperceptibly but distinctly, and more broadly loosen the boundaries between the normal and the exceptional.”
“There are some just perfectly sane things that you could only do” by invoking emergency powers, Scheppele said. Yet she noted that there is also the potential for grave abuse, and that case studies around the world suggest “emergencies” can start small and grow severe—even to the point of ending up in authoritarianism, as in Venezuela and Turkey.
She paused, then clarified. “It’s just a metaphor.”