In Case of Emergency, Read This NowStephen L. Carter
May 11 (Bloomberg) -- The time has come to declare a state of emergency to stop the absurd overuse of the term emergency.
When President Barack Obama the other day signed an executive order expanding sanctions on the regimes in Iran and Syria, he was actually extending a declaration of national emergency under which we have been living at least since the mid-1990s. That’s right. Whether you knew it or not, the U.S. is currently in a state of emergency, declared by President Bill Clinton and extended by his two successors. And in a state of emergency, as the courts generally concede, presidential authority is broader than it is in ordinary times.
We shouldn’t be surprised. We live in the era of the ubiquitous emergency, in which every major difficulty rejoices in the same description; and when everything is an emergency, everything requires extraordinary means of solution.
Soon the House of Representatives may take up Representative Paul Ryan’s “emergency” bill to fix the awful mess left over from last year’s deficit-reduction negotiations. Actually many members of Congress, from both parties, have introduced legislation that would either chip away at the looming automatic sequestrations, or undo them completely.
No doubt some of these bills are fine pieces of legislation. Others are probably awful. What they have in common is the word “emergency.” It is in the title of each because it is in the title of the law each is meant to amend, a statute going by the Orwellian name “Balanced Budget and Emergency Deficit Control Act of 1985.”
At this writing, there are some 153 bills with the word “emergency” in the title in the present Congress. To be sure, many of them include the word necessarily -- they amend the aforementioned Deficit Control Act, for example, or pertain to the Federal Emergency Management Agency. Others do not: the National Forest Emergency Response Act (which would “immediately implement hazardous fuels reduction projects” in the national forests), for example, or the Emergency Judicial Relief Act of 2012 (which would expand the number of federal judges).
The states, too, like to get in on the action. The health-care law enacted while Mitt Romney served as governor of Massachusetts included subsidies for what all sides have come to refer to as “emergency contraception” -- what pro-lifers have traditionally labeled “chemical abortifacients,” and pro-choicers and the media, until recently, “the morning-after pill.” But “emergency” has a purer ring. Last year, when Arizona sought to rein in the infamous Westboro Baptist Church by enacting legislation banning protests within 300 feet of a funeral, the statute was widely described as “emergency legislation” -- the emergency evidently being the nasty signs the church members carry.
Google’s wonderful Ngram Viewer permits us to track the frequency of a word in books over the past two centuries. Enter the word “emergency,” and you will discover that its usage rose only a bit during the Civil War, and declined thereafter, only to explode in the 20th century. Today, the word “emergency” occurs almost as frequently as it did at the height of World War II. In this sense, we do indeed seem to live in the era of the permanent emergency.
The abuse of the term is yet another sign of the degeneration of our capacity for public debate. Instead of advocating for our positions, we tend more and more to label them, and “emergency” is about as alarming a label as we are able to invent.
Without harnessing the power of words to construct actual arguments, however, we may find it difficult to draw distinctions and set priorities. That is why it is high time to fight back against the casual debasement of a word of considerable power and, when used correctly, great beauty and utility.
The Oxford English Dictionary displays its usual impatience at the vulgarization of a perfectly good word. It offers, as the first definition, “The rising of a submerged body above the surface of water” -- adding dryly, “Now rare.” The editors label as “obsolete” the most traditional meaning: “The arising, sudden or unexpected occurrence.” What they call the “modern” use (this being the OED, the earliest of their modern exemplars dates from the 17th century) is this: “a state of things unexpectedly arising, and urgently demanding immediate action.”
Our habit is to adopt the last half of the definition -- “urgently demanding immediate action” -- a phrase which fits the frenetic nature of the depressing media circus that leads our politics on a leash. What we are forgetting is the first half -- “unexpectedly arising” -- with its implication that what makes an emergency an emergency is precisely our inability to anticipate it.
We can here see the continuity with the original definition -- “rising of a submerged body” -- because the notion of both forms of emergency is that we had no idea what was about to occur. We are sailing along gaily in the ship of state when suddenly the behemoth emerging from the ocean depths blocks our course. We could not have imagined such a horrible beast in our path, and now face the emergency decision whether to circumvent it, try to slay it, or bribe it with most-favored-nation status.
By contrast, most of what we label “emergencies” are predictable. They are important. They are often urgent. They may even be dire. But they are not, strictly speaking, emergencies. When we grant them all the same label, we diminish the term’s power. In our effort to explain that some emergencies are more emergent than others, we wind up inventing such redundant neologisms as “dire emergency.”
Elaine Scarry, in her book “Thinking in an Emergency,” warns that governments overuse the word “emergency” in order to bypass individual rights and procedural protections. The proclamation of emergency, she suggests, is precisely the moment we should be on our guard: Is what we are enduring really so unprecedented that traditional restraints on state power should be swept aside, or are those who rule simply choosing the word to ease passage of their agenda?
Emergency at Sea
Continuing the earlier metaphor of the ship of state, we might profitably turn to admiralty law -- the law of the sea -- for guidance. The rule laid down by a federal court in the 1808 case of Ross v. The Ship Active, still followed today, involves the circumstances in which those who hire a ship must reimburse the master for the cost of his decisions on how best to protect both crew and cargo: “It must be in a case of emergency, not produced by the misconduct or unskilfulness of the master, or commander, and not resulting from the ordinary circumstances of the voyage.”
Here we see a further restriction on the term. Not only must an emergency be unanticipated, but those who want to use the word can’t be the ones who caused it. Thus my nominee for the silliest use of the word is the district council of Washington, which earlier this year adopted what it called “emergency legislation” to limit the cultivation of medical marijuana.
The reason the problem arose was that the council itself had just two years earlier jumped on the pot-legalization bandwagon, never considering that people might actually grow the stuff. In short, the council was declaring an emergency to clean up its own mess.
Have examples of your own? Send them along. I’ll address some of the more intriguing ones in a future column.
(Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama,” and his next novel, “The Impeachment of Abraham Lincoln,” will be published in July. The opinions expressed are his own.)
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