121 Pages Posted: 29 Dec 2020 Last revised: 16 Jan 2021
Date Written: 2020
Emergency powers are essential to the proper functioning of the government. Emergencies demand swift and decisive action; yet, our system of government also values deliberation and procedures. To enable such agility in a system fraught with bureaucracy, Congress frequently delegates unilateral statutory emergency powers directly to its most nimble actor: the President. The powers Congress delegates to the President are vast and varied, and often sacrifice procedural requirements in favor of expediency. Most scholars and policymakers have come to terms with this tradeoff, assuming that the need to respond quickly is outweighed by any loss of accountability.
This Article challenges this long-standing assumption and is skeptical of the zero-sum framework that suggests accountability and expediency cannot coexist in statutory emergency delegations. Specifically, it develops an Executive Delegations Matrix to better evaluate the different delegation options, demonstrating that accountability and expediency need not be mutually exclusive. This Article then uses emergency energy powers to test the viability of the factors favoring unilateral delegations, ultimately finding these factors unpersuasive in the energy-emergency context. Instead of the common knee-jerk reaction to unilateral presidential control over emergencies, this Article finds that Congress can often cultivate a more balanced decision-making framework by providing a greater role for expert agencies. By challenging the assumptions underlying unilateral presidential delegations for energy emergencies, this Article provides a new framework for assessing the world of unilateral presidential delegations more broadly.
Keywords: emergency powers, executive powers, the president, delegation, administrative law, energy law
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