98 Indiana Law Journal 479 (2023)
Whereas emergencies used to be the exception to the rule, they now seem to be the norm. Wildfires, hurricanes, flooding, and contagious diseases dominate our daily lives. Although these are not the traditional types of military emergencies of our past, these non-wartime emergencies can trigger some of the same emergency powers. And with their use comes some of the same concerns about abuses of such emergency powers. Much ink has been spilled analyzing the tradeoffs associated with necessary emergency powers and frequent abuses in the context of foreign threats—resulting in reduced privacy, civil liberties, and freedoms.
This Article is not here to rehash that debate, but to shift our focus from the use of emergencies to address foreign threats to the use of emergencies to address domestic ones. Importantly, despite mounting evidence cautioning against the abuse of emergency powers, public actors have expanded their use from foreign contexts to domestic contexts. Specifically, public actors have used domestic emergencies as pretext for several unrelated actions impacting marginalized communities, limiting environmental protections, abolishing low-income housing, and even restricting abortion rights.
Although both foreign and domestic threats are subject to manipulation to be marketed as “emergencies,” the frequency and proliferation of domestic threats lend themselves to particular scrutiny. To aid in this effort, this Article identifies several instances where public actors are using both legitimate and questionable domestic emergencies to achieve unrelated policy goals. It argues that emergency actions that can be classified as domestic should be designated as such. Recognizing this critical distinction may allow for enhanced scrutiny that is lacking when challenging emergency actions related to national security. Domestic emergency actions, in contrast, may be less deserving of deference, be less susceptible to secrecy claims, and be easier to demonstrate as disconnected from the actual emergency at hand. It sets forth strategies to prevent, remedy, and penalize such abuses, recognizing that emergency powers were intended to be used sparingly. When every day presents a new emergency, we run the risk of living under perpetual emergency powers and perpetual abuses.
Stein, Amy L.
"Domestic Emergency Pretexts,"
Indiana Law Journal: Vol. 98:
2, Article 4.
Available at: https://www.repository.law.indiana.edu/ilj/vol98/iss2/4