By: Courtney DeVore
Countries will inevitably face emergencies. Historically, governments have exercised immense power in response to emergencies. For responses to be quick and effective, emergency power operates outside of the normal rule of law. While disbanding the normal rule of law may be necessary from time to time to protect national security, the unilateral ability of government to take such action creates perverse incentives to abuse the power. Abuses of emergency power are found across the globe, most notably occurring in the United States recently.
In the wake of the Trump Administration, this Note seeks to identify how and why the US emergency power system failed both to protect against abuse and to assist in effective decision-making. While the Trump Administration has magnified problems with emergency power in the United States, the perverse incentives are certainly not unique to this administration or country.
This Note takes a multinational approach to the emergency power problem, identifying the most—and least—effective safeguards adopted by countries around the world. This Note then offers a solution that balances national security and individual rights. Designed for the United States, this solution provides a way for president-elect Joe Biden to yield power back to the country, a legacy that should long outlast his presidency and one that should garner bipartisan support. While US-centric, these protections are not US-specific. Other countries facing emergency power problems should also take note of the multinational comparison to implement a system that acknowledges the need for swift action during emergencies while also protecting against abuses of individual rights.