“Berkeley Law Voices Carry,” hosted by Gwyneth Shaw, is a podcast about how the school’s faculty, students, and staff are making an impact — in California, across the country, and around the world — through pathbreaking scholarship, hands-on legal training, and advocacy.
This episode features UC Berkeley Law Professors Katerina Linos and Elena Chachko discussing their new paper in the William & Mary Law Review, “Emergency Powers for Good.” In the article and a blog post on “Lawfare,” they argue that emergency powers — often associated with overreach and authoritarianism — can be used in legitimate and transformative ways.
The piece has drawn a strong reaction, including a comment in the Yale Journal on Regulation (and a response from the authors).
Linos is the Irving G. and Eleanor D. Tragen Professor of Law and co-faculty director of the Miller Institute for Global Challenges and the Law. She also hosts the “Borderlines” podcast.
Chachko, who joined the faculty in 2023, explores the intersection of law and geopolitics primarily through the lens of administrative law and theory.
What follows is excerpts of their conversation. Listen to the full episode below and visit the “Voices Carry” archive for all episodes.
GWYNETH SHAW: Let’s start with some definitions and examples. Katerina, what constitutes an emergency power? And what are some of the bad ways they’ve been used?
KATERINA LINOS: Elena and I are incredibly excited to talk about our provocative new piece. To get to your question, we are focused on powers that are used during emergencies and that deviate from normal procedures. One common way in which we see these deviations is through concentration of power in the executive with less consultation of the legislative branch.
GWYNETH SHAW: And what are some of the “bad” ways they’ve been used? An example that an average person might think of immediately?
KATERINA LINOS: The classic realm is the national security realm. So the rounding up of Japanese-Americans is a classic abuse. We have the War on Terror more recently involving a lot of abuse. The biggest abuses are associated with the Nazi regime.
ELENA CHACHKO: Thank you so much, Gwyneth, for hosting this episode on this provocative piece. And it’s a piece that has generated a lot of reactions among audiences when we presented it, when we discussed it, because I think emergency powers in this idea has such a deep negative pedigree in history.
As Katerina said, starting with World War II through various actions that were taken during the Cold War, the latest iteration where emergency power literature became incredibly dominant and was top of mind for scholars of constitutional law, comparativists, scholars of national security law was after 9/11.
And the various ways in which the Bush administration arguably exceeded the scope of its authorities and used executive power in ways that were clearly problematic to authorize torture, to deviate from statutory requirements in various policy areas, and to accrue a lot of power within the executive.
So that was a time in which executive powers had been discussed extensively and negatively. And so there’s this history and intellectual history of emergency powers that is profoundly problematic, that is historically associated with ideas that are now beyond the pale like Nazism.
So that was where we started with this project, and that is to a large extent how this project has been received.he first reaction that we hear, you’re [Carl] Schmitts. You’re trying to build a justification for extensive exercise of emergency powers, despite the problematic ways in which those powers have traditionally been used. How can you defend this?
GWYNETH SHAW: In your article, you lay out a framework for using emergency powers for good. And you give a bunch of examples, but particularly, you introduce a new framework that is supposed to be the opposite of what the traditional one has been.
How does your framework differ from that traditional framework? You may need to talk a little bit about what that traditional framework is. But how does yours differ from that?
KATERINA LINOS: The traditional framework requires that there be a real emergency and that certain procedural requirements, such as a declaration of the emergency and sunset clauses for measures taken during the emergency. be implemented.
Those are shared features in the traditional framework and in our framework. We too want there to be a real emergency and for there to be some procedural requirements. We want declared emergencies and measures that sunset.
Similarly, both our framework and the traditional framework are frameworks courts can use to apply in democratic states to assess emergency measures. So if we’re talking about an authoritarian regime, if we’re talking about a regime where the courts don’t have any kind of meaningful independent oversight, we’re outside the framework. We’re discussing particular legal tests.
Both our framework and the traditional frameworks are used globally and comparatively. So we have a number of U.S. examples. We have a number of European examples. And the third element of the traditional test is the requirement of proportionality and necessity.
So in the traditional test, if a health emergency hits a country, a number of health-related measures will be considered necessary and proportional by courts reviewing those actions. However, a measure calling for big investments in climate change or a measure calling for student loan forgiveness might not be seen as a necessary and proportionate response to a health emergency.
This is the first place where our test begins to differ from the traditional measure, because we want crises to be used as opportunities as long as two other constraints are met. The two novel constraints we’re introducing are broad consensus and a heightened non-discrimination standard.
What we mean by broad consensus is consensus from the right and the left, consensus from minorities and majorities — the type of consensus that might arise if a country is invaded, if aliens take over, if an entirely new world emerges. And we need to move quickly and we need to respond to this situation where previously people who wouldn’t talk to each other suddenly are in agreement.
The next requirement our new test puts in place is that isolated minorities not be disproportionately harmed. It’s easy — especially in wartime, but also at other times — to target an isolated minority and to get 99% of the population to place a severe burden on 1%. So this, too, is an element of constraint that we introduce. There is non-discrimination in the traditional framework, but we make it heightened.
GWYNETH SHAW: What are some examples of something that would fit into your framework, Elena? What’s an example either of something that’s already happened or something that you’re thinking through?
ELENA CHACHKO: Something I will add to Katarina’s description of how our framework differs from the existing one is perhaps a back story about our motivation, because that would help explain why we’re willing to open up greater space for use of emergency powers to accomplish things that would be precluded under the existing framework.
Because there will be disproportionate to the foundational objective of the legal framework that governs emergency powers today, which is to restore status quo ante. That is the only permissible purpose of emergency powers today under the existing international law framework.
And if you look carefully, even in some domestic law frameworks, if there’s a pandemic, you do whatever you need to do to live through the pandemic. But the ultimate goal is to restore things to the way they were, to the greatest extent possible, before the pandemic. And what we’ve seen is that many jurisdictions, both in the United States — and the loan forgiveness plan is an example of that — and particularly in the European Union, have used emergency powers in a way triggered by crisis like the Ukraine invasion or the Covid pandemic, not only to address the immediate concerns that arose from these crises, but also to institute longer-term policies, longer-term social projects that you just can’t argue under any reasonable understanding of proportionality, in our view, satisfy this.
A basic test that all you do in the framework of an emergency should be limited by this principle that it can only restore status quo ante. And then we looked at some of the legal justifications, especially in the EU that were given to these projects.
And we saw that a lot of them tried to couch these clearly transformative policies in the language of proportionality. And we just said to ourselves, wait. This doesn’t make sense. We need a new theory, because we think overall, ex post facto, those policies accomplished good things, in the EU especially.
You can argue about the United States. And we can talk about that a little bit later. But the policies that were instituted in the EU were generally ones that created stimulus packages, that invested in renewable energy, that invested in innovation.
And you look at this and you say, should we really disqualify these policies simply because they were adopted based on an emergency provision in the EU treaties and not through the regular legislative procedure?
And our intuition was no. So then our theory is designed to provide a benchmark to be applied ex post facto for judging these transformative policies in a way that could save some of them if they meet certain criteria.
And so in an answer to your question, what are good examples? So the European Union introduced this massive stimulus plan in response to the Covid crisis. It’s called next generation EU. Katerina is now studying it very carefully.
But I’m interested in it as an instance of a use of emergency authority that we find clears our normative requirements in the following sense. It was a plan instituted in response to a massive, unprecedented global health emergency. It followed transparency requirements that we maintained from the old framework.
And then we come to our revision of the existing theory to the requirements of consensus and increased or heightened non-discrimination standard. And this plan, Katerina, correct me if I’m wrong, it enjoyed the support of the consensus of the European member states.
That is, all member states voted in favor of this plan in the EU Council. And despite the fact that its adoption did not follow the regular legislative procedure, you could argue that under these circumstances, it’s clearly legitimate. All countries voted in favor.
And then when you try to assess it under our increased non-discrimination standard. And by that, we mean, so the existing framework looks at traits that you would traditionally associate with non-discrimination law.
So it looks at discrimination based on religion, on national origin, on race. Those are things that are covered by the existing framework. And we say if you look at transformative social policies, that’s not enough. Because we’re allowing this to happen through different procedures than the standard legal and constitutional process would prescribe. And therefore, we need more protections.
We need to make sure not only that the policies are not discriminatory based on these immutable traits, traditional non-discrimination, status-based criteria, but also to make sure that measures adopted through our transformative emergency powers for good framework are not disproportionately targeting a particular group.
So think about immigration measures. For example, if the result of those measures will be that only one border city in Italy or in Greece is required to provide solutions for migrants that come into the European Union from the entire membership, then this is a reason for us to be concerned about this policy and its compliance with our increased non-discrimination standard.
So this was the motivation — and this is also our response to many critiques that say emergency powers have been abused as it is. They have been used, especially in the U.S., to accrue power in the executive.
Why on earth would you propose a theory that allows for greater use of emergency powers? And not just greater use of emergency powers, but also use of emergency powers in a way that explicitly aims to institute long-term programs?
And our answer is this is happening anyway. It’s disingenuous to try to couch things like the next generation EU plan in the terms of the old framework. Some of this is desirable. Again, look at the next generation EU plan.
So let’s address this squarely and think about a normative framework that would draw the appropriate lines here that will allow us to save what is useful from these measures and at the same time guard and shield against abuse of transformative emergency powers.
And that is our objective. Do we do this well? We’re sure there is a lot more to develop in this framework, but the idea was to take a first step in that direction and start a conversation, because we think that there will be more crises. Crises have been increasing.
We have climate issues. We have public health issues. We have immigration crisis that just keeps on reappearing in various guises around the world. We have armed conflict generating crisis situations. And you see governments reacting to those situations in ways that are transformative.
So we cannot keep talking about these measures and language that is focused on restoring things to the status quo ante, especially when the alternative methods for creating law and offering solutions for all these problems seem to be constantly lagging behind, not just in the EU but here in the United States as well.
GWYNETH SHAW: What I’m hearing you saying is that rather than as someone might criticize this becoming a justification for just going around the legislative process and using the emergency as an excuse to just bypass the legislature, this is simply recognizing the ability to take an opportunity where it is presented to do something with these emergency powers, if it’s something that you can do carefully in a considered way and with all of these safeguards in place, is that correct?
KATERINA LINOS: I’ll bring up some American examples just to make it a little bit clearer. So we discussed three examples at length. These concern the [then-President Donald] Trump border wall proposal, the Biden loan forgiveness program, and President Bush’s use of TARP, the Troubled Asset Relief Program, to bail out the Detroit automakers.
All three are quite challenging to justify under the existing measure. And we say that two of them — the Trump wall and the Biden student loan forgiveness program — don’t pass our test. Maybe I’ll leave those to Elena if you want to elaborate on the two that fail both tests.
But in order to illustrate our framework, I’ll discuss briefly an effort that passes one test but fails the others. So the Troubled Asset Relief Program was put into place as a response to the financial crisis of 2009. And the core provision was a bank bailout.
At the time, President Bush decided that he wanted to use this statute to bail out the auto industry. And to interpret this very creatively, many would say this was a difficult interpretation. And under the traditional framework, this would be difficult.
However, we note that it was not only President Bush who wanted to use the funds in this way, but that he had the support of Democratic House Speaker Nancy Pelosi, Democratic Senate Majority Leader Harry Reid, and Democratic President-elect Barack Obama.
So because you had this highly unusual consensus in the face of a highly unusual crisis where a lot needed to be done immediately. And because this auto industry bailout was not targeted to harm a particular minority, this would pass our new test as a transformative measure, an emergency measure for good.
GWYNETH SHAW: Elena, can you talk about the other two examples in contrast with that?
ELENA CHACHKO: The other two examples are President Biden’s original iteration of the student loan forgiveness plan, which was invalidated by the Supreme Court in the United States versus Nebraska based on the major questions doctrine.
The other example is President Trump reallocating funds from military construction projects to the construction of a wall, a barrier on the southern border of the United States, ostensibly to address a migration crisis based on emergency authority built into that military construction funding arrangement.
So these are the two examples that we picked. Both instances of arguably transformative uses of emergency powers. So loan forgiveness on a large scale with long-term implications, economic implications, at least among the group that will benefit from that plan, nothing more permanent than a border wall.
So arguably, this would change the situation on the southern border of the United States in a permanent way. So that is why these measures are appropriate to discuss under our framework. In both cases, we argue, fail our framework.
And so in a sense, our argument provides an alternative justification to the outcome of Biden versus Nebraska that the court could have deployed had it not gone for this different route of invalidating the plan based on the major questions doctrine.
Anyway, why does the loan forgiveness plan fail our test? This was a clearly unilateral move by the administration. There was clear opposition from Congress, from the Republican side of the aisle. You could not point to any support for this plan from the other party, from the opposition.
So even under the narrowest interpretation of our consensus test, the loan forgiveness plan would fail. And therefore, under our framework, this would not be a legitimate use of emergency powers.
And I think that resonates with the intuition many have had about the legitimacy of using emergency powers in that way and leveraging a pandemic to make arrangements that are about education policy, and that are about debt relief and have very little to do with Covid.
The other example of the border wall, this was a case in which Congress actively opposed this use of executive authority. There were statutes passed to express opposition, which President Trump vetoed, another example of clear and resounding failure of our consensus test.
And we also go into questions surrounding some of the other tests in the framework, such as the non-discrimination test, in particular in the wall case, where you could argue that there is disproportionate impact on border communities, on particular states that have been affected by this plan and had projects diverted or shifted in favor of building the border. But we think those are secondary to the main element, which is the failure to meet our consensus requirements, even the bare minimum of cross-party support.
GWYNETH SHAW: So you talk at length, as you both noted in the piece, about EU examples and U.S. examples. And it seems as if more of the EU examples meet your test and more of the U.S. ones fail it. What does that tell you about U.S. politics and U.S. policy?
And we’ve talked about three presidents here — George W. Bush, Trump, and Biden, all three of them using a lot of executive power to subvert the legislative, if you want to call it gridlock or opposition, depending on your perspective. What’s happening in the EU that is making this work a little bit better, at least from the terms of your framework?
KATERINA LINOS: The question has to do with the institutional structure of the federal government, as opposed to the powers given to Brussels. The powers given to Brussels are narrower. In the Covid emergency, the German finance minister, now Chancellor Olaf Scholz, said this is Europe’s Hamiltonian moment.
They did not have powers as strong as those of the federal government. So while President Biden could pass a big stimulus through ordinary legislation, there were problems associated with the European treaties that we just don’t have in this country at this moment because of the differences in structure.
So the structural obstacles and the need for quick action were different in the European situation. Ukraine mattered tremendously to the world, but it requires and required particularly rapid action for the Europeans that had previously not been given to the European level. So there are some structural issues there that explain why they have used emergency powers so frequently recently.
ELENA CHACHKO: I think there is a difference in constitutional tradition as well. Use of emergency powers as an instrument for policy-making in the European Union is new. So there were instances of this in the past, but there is this residual emergency power in the European treaties. It’s called Section 122 of the Treaty on the Functioning of the European Union.
But that provision was rarely applied until just a decade ago. So this whole recourse to emergency powers, to begin with, in the EU is newer and it’s clearly addressed more carefully in the EU in the sense that there is a lot more effort to build consensus around emergency measures.
There’s trepidation around legal authority. So we saw I talked about this opinion that the council legal service prepared before the next generation EU plan was enacted. And there was real care in justifying the use of Section 122 to support this plan, because it was a precedent.
And there is a political legitimacy issue there to maintain the credibility of Brussels as an organ, a central institution that is operating within the confines of its legal authority and not usurping the power of the member states.
Compare that to the United States. So in the United States, there are around 150 distinct emergency authorities in various parts of the U.S. Code. There are entire areas of governance and regulation that are predicated on emergency powers. Think about economic sanctions. All of this is based on the International Emergency Economic Powers statute.
That’s a statute from the ’70s that gives the president the authority to impose basically any economic restriction if he declares an emergency with a significant foreign element. So there’s just this tradition of heavy reliance by the executive on emergency powers that has been regularized.
So other institutions have come to accept that the executive uses its powers in this way, and that emergency authority serves as the basis for many important policies that the executive enacts.
And I think that resulted in less discipline in a lot more — in executives being trigger-happy in turning to emergency powers to do things that they probably should do through the regular legislative process.
And all of this has been exacerbated by polarization and the fact that it’s really hard to get things done the regular way because of the adversarial relationship that we often see between Congress and the executive, at least when they’re controlled by different parties.
So there’s a lot less discipline, a lot less need for consensus building, a lot less need to reach across the aisle because it’s already established that the president has those powers or that those powers were delegated to the president and he has the right to make use of them as he sees fit based on his foreign policy, national security discretion.
And so with time, you see more audacious uses of emergency authority. So now we see emergency power used to forgive debts and to build borders and to do all kinds of things that presidents would not do with emergency powers in the past. And I think that contributes to these measures being less justifiable under our normative framework.
GWYNETH SHAW: Well, and then it seems to, at least in this country, further inflame the political process so that it’s almost a cause-and-effect kind of thing. The more president uses the executive powers, the less likely the opposing party is to help out in any way.
I wanted to come back to Ukraine really quickly, because I would love it if one or both of you could describe some uses of emergency powers since the conflict with Russia started that might meet your criteria. And some maybe instances where they weren’t used because of the existing framework. Just talk a little bit about how that fits into what you’re thinking about with this framework.
KATERINA LINOS: The Europeans had to put in place a lot more measures that were highly unorthodox in response to Russia’s invasion of Ukraine. One set of measures had to do with finding financial support for Ukraine. So they created a facility that collected hundreds of billions in order to contribute to the reconstruction of a non-member state. And that was highly unorthodox.
The other set of highly unorthodox measures had to do with energy policy across the 27 member states, including caps on energy prices, including taxes on energy companies that were making excess profits.
So one Czech diplomat said measures that were considered off the wall in July had become mainstream by September. So they had to put in place a lot of measures in those two fields.
We consider a number of these measures to pass the test because they got extraordinary consensus. So they got the national capitals to all agree on this. They got the European Commission, which is the co-executive branch, to agree on this. So they met that element.
And also because they were not intended and had elements in them not to harm the households, the companies, the most harmed states. So they had clearly thought through this element of non-discrimination plus that’s an essential element of our test. So to the extent these measures then get challenged in European courts and in national courts, we’ve provided a framework through which they can be justified.
GWYNETH SHAW: We’re looking at a second term of President Trump with Republican control of the Senate and the House, and obviously, the Supreme Court with multiple Trump appointees.
So, on the one hand, that seems like it would set the United States up for a traditional political process that’s exactly what the founders intended: working together and passing legislation, and the president either signing or vetoing it.
Do you expect Trump to use emergency powers more often than President Biden did or less often, given the Congressional equation? Since some of the examples that we’ve talked about, as I already mentioned, really seem to be designed to bypass the gridlock or bypass opposition from the legislative branch.
ELENA CHACHKO: It’s true that a lot of times, executive powers are used to bypass the legislative branch. But many times, the president just exercises authority that Congress had already delegated over a long period of time and never bothered to take back.
And again, sanctions are one example of that. I don’t think anyone thought that emergency authority for military construction would ever be used to build a border wall. Nevertheless, I believe, I might be wrong, but I believe this provision is still on the books. Nobody bothered to foreclose that possibility in case another president decides to make such use of this power.
So this is a structural issue that does not necessarily involve the president going around Congress or using emergency power to accomplish things that Congress is blocking. And so I don’t know. I’m not a prophet.
And one should be very careful in making predictions about any incoming administration, and in particular, about a Trump administration. But we need to remember that there is a big structural issue there that motivates and creates incentives for presidents to just go to emergency powers that they already have without bothering with the legislative process and getting whatever they want from Congress.
And as for the question of whether Trump uses emergency powers more or less, given that he has ostensibly a more supportive Congress? Time will tell. But if you look across time, presidents have consistently relied heavily on emergency authority that Congress delegated and just never took back. And that will remain the case coming into the Trump administration.
KATERINA LINOS: Maybe I’ll add a couple of thoughts about how our model and theory would apply to potential Trump administration actions. The measures liberals are most worried about have to do with the civil service and immigrants.
The measures President Trump has already announced that are facing widespread opposition would not meet either element of our task. They would not be measures that have widespread consensus. I’ve defined them as having lots of opposition. And they would be measures that would target vulnerable groups.
However, let’s not forget that the first Trump administration faced an unprecedented crisis, the Covid crisis. And President Trump worked with Nancy Pelosi to pass stimulus measures that had a lot of good in them. A lot of lessons from the housing crisis from 2009 were learned and were put in place in those stimulus packets.
So I wanted to emphasize two elements of our model. First, we’re waiting for a severe and unanticipated crisis that brings consensus between people who understood themselves as enemies until that point.
And we are also moving the conversation often to the economic sphere, because in the national security sphere, we have seen the abuses. We have developed the frameworks to limit those abuses. So those are a couple of thoughts as we face a really unprecedented situation.
GWYNETH SHAW: I think that is a really interesting distinction in terms of talking about transformative policies and also building that consensus, since it does seem as if economic policy is an easier place to find some of these qualities than the national security realm.
And is that because the previous abuses are so baked into the thinking about national security questions in that there is a lot of reluctance to invoke some of those things because of what’s happened in the past?
Or is it because, in your opinion, the economic policy ideas may be a place where you can find more consensus in an emergency, such as the conflict between Ukraine and Russia and Europe needing to protect itself from huge energy prices?
ELENA CHACHKO: I think that’s absolutely a distinction that has a lot of weight here. And I agree with you that people are particularly reluctant about expanding emergency powers in the national security sphere, because we think of national security measures as particularly pernicious. They might result in individuals losing their liberty, their lives, their access to resources.
And so the intuition is to be particularly careful about expanding any authority in that area, notwithstanding the fact that the presidents have accumulated a substantial amount of authority in those areas as it is without recourse, without necessarily recourse to statute.
With economic policy, I think there’s an underlying intuition that reasonable people can disagree about what’s good for the country. And Republicans might have a certain view about what the proper economic policy is. And liberals and progressives can have a different view.
And those disagreements don’t implicate these types of concerns about people losing their liberty life or bank accounts in a direct way. And so I agree with Katerina that this is where there might be room for consensus if another economic crisis hits or, if God forbid, something else happens that is equivalent to the Covid crisis and what that brought.
And maybe then we will see, it’s hard to imagine right now, I guess for many people. But maybe then we will see a Trump administration reaching across the aisle and trying to build consensus with Democrats around emergency policies in that realm.