Emergency Powers

Emergency Powers

This article relates to Prophet Song

In Paul Lynch's novel Prophet Song, the enactment of an Emergency Powers Act sets in motion a sequence of destabilizing events that will eventually lead to societal dissolution and civil war. The Act provides the legal justification for an authoritarian government, through its newly formed secret police force and military, to bypass normal protections and institute human rights violations against its own citizens under the guise of national security measures. Throughout the novel, characters question how it is possible that an elected government in a democratic country such as Ireland can ignore the constitution in hammering its crushing new restrictions into place.

American readers may also find themselves reflecting on how realistic such a nightmarish vision might be in the United States. What exactly are emergency powers, and how are they activated? How are governments meant to utilize these powers? Would it ever be possible in America for a ruling party to misuse this tool to supersede regular privacy and protection laws and suppress the rights of its own citizens?

In fact, most countries have some version of an emergency powers act that allows a government, in certain circumstances, to take swift actions that would not normally be permitted in order to protect its citizens. In the United States, the National Emergencies Act is brought into play whenever a president declares a state of emergency during a crisis such as a natural disaster, civil unrest, armed conflict, medical pandemic or epidemic or other biosecurity risk. According to the Brennan Center for Justice, "The purpose is simple: to temporarily enhance executive power during unexpected crises that are moving too fast for Congress to respond."

The value is clear. Under normal circumstances, creating new laws in the United States involves quite a bit of time and debate within the various branches of government in order to adhere to the constitution's strict guidelines. However, according to the Civil Liberties Union for Europe, in an emergency, "democratic checks and balances can hamper a government when they need to act quickly. The process for debating new laws can take weeks if not months, which could slow decisive, life-saving action."

In the US, the governmental use of emergency powers can be traced back to legislation introduced in 1775 by the Continental Congress. The first president to declare a national emergency was Abraham Lincoln during the Civil War. Until the First World War, American presidents utilized such authority purely at their own discretion. Between World War I and 1976, Congress asserted more oversight over emergency laws, but eventually they grew into a convoluted maze of 470 often contradictory laws and statutes. So, in 1976, the National Emergencies Act (NEA) was enacted. It superseded all earlier laws in establishing clear rules governing federal responses to national emergencies. President Ford signed the new Act into law, though he believed it was unconstitutional for the new law to give Congress the power to terminate an emergency without presidential consent. Indeed, this aspect of the Act was later amended, and now Congress can only end emergency declarations through joint resolutions, which require the president's signature.

Other Americans have warned about the law's potential for abuse. Currently, in the United States, there are 123 exceptional powers that become available to a president if he or she declares a national emergency. According to the Brennan Center for Justice, "Many are measured and sensible, but others seem like the stuff of authoritarian regimes: giving the president the power to take over domestic communications, seize Americans' bank accounts and deploy U.S. troops to any foreign country. Given how broad these powers are, it is critical to have adequate safeguards in place to prevent abuse."

Unfortunately, the National Emergencies Act, in its current form, lacks some of those protections. As the Brennan Center notes, "It allows the president to declare emergencies with nothing more than a signature on an executive order, and presidents can renew those emergencies every year ad infinitum." And while it is true that Congress can still take steps to end a state of emergency, "it effectively needs a veto-proof majority to do so." This has in recent years led to worry about unchecked presidential power.

Perhaps, the dystopic vision of Lynch's novel—the collapse of a once stable democracy—is not as far-fetched as we Americans would like to believe. The president's ability to quickly trigger the use of emergency powers can be crucial in a crisis, but there are also risks. As a 2019 New York Times editorial warns: "National emergencies can threaten the constitutional balance even under democratically minded presidents like Abraham Lincoln and Franklin Roosevelt. But they can be fatal under would-be autocrats, for they provide a seemingly legitimate (and often popular) justification for concentrating power and eviscerating rights."

Filed under Society and Politics

This "beyond the book article" relates to Prophet Song. It originally ran in February 2024 and has been updated for the December 2023 edition. Go to magazine.