Victoria Ochoa L’21 is a Texas native and a JD/MPP student at the University of Pennsylvania Law School and Harvard Kennedy School.
Last year, the President circumvented Congress and declared a national emergency to build a wall in my hometown. This was not the first time my predominately Latino border community has been overpowered by the will of an executive concerned with securing the state, but it might have been the most egregious. The President’s declaration illuminated how presidents can manufacture emergencies to use executive powers for nefarious reasons and harm vulnerable communities of color that stand in the way.
Emergencies, in both the literal and rhetorical sense, are powerful legal and political tools that prompt endless questions. Who gets to decide what constitutes an emergency? What exactly is an emergency? How can an executive use the powers available to them to respond to an emergency?
These are all questions I have reflected on this summer as I have worked at the Brennan Center for Justice and supported the Liberty and National Security team’s work on emergency powers. The Brennan Center works to inform stakeholders of the vast range of emergency powers available to a President during a declared emergency. The Brennan Center also advocates for legislative constraints on the president’s ability to use and abuse these powers.
As government officials have had to respond to the COVID-19 pandemic, these questions, now illuminated through a legitimate emergency, have become relevant again. My work this summer has focused on how governors have used their power to protect public health, expanding these inquiries to the state level. Coincidentally, I am also enrolled in Dean and Bernard T. Segal Professor of Law Ted Ruger, Professor of Law Allison Hoffman, and Seaman Family University Professor Karen Tani’s remote “COVID and the Law” course, which has provided a helpful constitutional primer on how multiple levels of government have responded to public health crises today and in the past.
Though COVID-19 has provided a tragic lens to evaluate issues of federal emergency powers and state police powers, the understanding I am developing about the contours of government power transcends the moment we are in. As the President’s emergency declaration at the border illustrated, these parameters of power are crucial to understanding how an executive can act for or against vulnerable populations.
I hope to continue to engage on issues of emergency and state police powers more broadly and advocate for oversight measures well beyond this summer. I am grateful to the Brennan Center for providing me this opportunity to think critically about the functioning of our government institutions during legitimate and illegitimate crises.