Skip to content
Search

Latest Stories

Top Stories

States need to define emergency

States need to define emergency

Boiling lava erupts at night in the Helemaumau crater of the 4,090 ft. high Mt. Kilauea on the island of Hawaii, the site of multiple state emergencies.

Getty Images

Kevin Frazier is an Assistant Professor at the Crump College of Law at St. Thomas University. He previously clerked for the Montana Supreme Court.

Desuetude. It’s a funny word lawyers pull out to remind their friends they went to law school. It just means disuse. Lawyers, admittedly, have another purpose for using such a dense word -- to refer to laws that, like the appendix--once served a purpose but have since become outdated or, in some cases, simply forgotten. This might not sound like a problem -- after all, if such laws aren’t enforced, then is anyone really bothered by them?


Well, again like an appendix, a forgotten law can burst and cause quite a bit of damage. This happens when a bored scholar or, more likely, a creative litigant brings a law out of the dustbin and attempts to release its neglected power on an unsuspecting individual or community. That may soon be the cause with respect to continuity of government (CoG) provisions.

At the height of the Cold War, thirty-five states--including California, Texas, and Florida--ratified some version of this template provision:

The Legislature, in order to ensure continuity of state and local governmental operations in periods of emergency resulting from disasters caused by enemy attack, shall have the power and the immediate duty . . . to adopt such other measures as may be necessary and proper for ensuring the continuity of governmental operations.

It doesn’t take a law degree to see that a state legislature that invoked its CoG provision would have substantial--even extra-constitutional--power to respond to a period of emergency. Two major questions, though, are somewhat unclear. First, who decides what constitutes a “period of emergency?” Second, which circumstances give rise to such an emergency?

Let’s take those in order. Typically, courts help answer these questions but they’ve been of little assistance for more than fifty years--turns out these provisions have rarely been invoked and, even when they have, courts have generally deferred to the state legislature’s judgment. A few states have altered their CoG provisions to give the governor the sole power to declare such an emergency. But, for the most part, the provisions have received little judicial scrutiny and as much scholarly attention as the backup punter receives in the write-up of a football game. The most likely answer is that state legislatures are responsible for pulling the trigger or keeping the safety on.

How, then, should state legislatures decide when and if a period of emergency has occurred? One answer would be to look to the history of the provisions. Voters ratified these constitutional amendments by massive majorities and didn’t bother to ask about the details because they had a single situation in mind: a catastrophic nuclear attack. Having witnessed the destructive power of nuclear weapons and lived through Soviet attempts to place such weapons in our backyard, voters acted out of fear and gave the state legislature broad powers to respond in the event of widespread and significant destruction of life and property. So “emergency” likely only referred to nuclear war and the “enemy” probably exclusively applied to other nation states.

How does that history translate into the present? The diversity of answers to that question is what spells trouble. Is a cyberattack on critical infrastructure close enough to a nuclear attack? Is a major terrorist organization a substitute for a nation state? You see the problem: the definitions of emergency and enemy could be morphed to align with the political or personal wishes of legislators.

Some legislators could try to call a limited and unlikely threat an “emergency;” others might refuse to trigger the provision even after a major natural disaster--mother earth isn’t a nation state, right? This ambiguity and uncertainty does no one any good--just like an appendix.

Citizens in thirty-five states need to tend to their appendices before they burst--clean up or clarify your state constitutions. The alternative--trying to answer these questions in the middle of a calamity--is a can that can’t be kicked; the weight of the question is too heavy. So, go read your state constitution, call up your state rep and tell them to figure out the definition of emergency, clarify who counts as an enemy, or to take the provision off the books.

Read More

Anti-gerrymandering protest
Anti-gerrymandering protest
Sarah L. Voisin/Getty Images

The Gerrymandering Crisis Escalates: Can Reform Stop the 2026 Power Grab?

The battle over redistricting is intensifying across the country, with bipartisan concern mounting over democratic legitimacy, racial equity, and the urgent need for structural reform. Yet despite years of advocacy from cross-partisan organizations and scholars, the partisan battle over gerrymandering is accelerating, threatening to fracture the very foundation of representative democracy.

The Fulcrum has been watching closely. In our August 8th editorial, we warned of the dilemma now facing the reform movement:

Keep ReadingShow less
A close-up of a microphone during a session of government.
Rev. Laurie Manning shares her insights on speaking with political leaders about specific advocacy efforts. "Your senators' offices are waiting to hear from you," writes Manning.
Getty Images, Semen Salivanchuk

How To Rewire a Nation From a Single Seat

In politics, attention is drawn to spectacle. Cable news runs endless loops of red-faced lawmakers clashing in hearings, while pundits dissect every gaffe and polling shift. Every election season becomes a staged drama, parties locked in opposition, candidates maneuvering for advantage. The players may change, but the script stays the same. Those in power know that as long as the public watches the visible fracas, the hidden machinery of control runs quietly, unexamined and untouched.

We are told the drama hinges on which party controls which chamber, which map shapes the advantage, and which scandal sidelines a rising star. These are presented as the key moves in the political game, shifting the balance of power. Every election is declared the most consequential of our time. But these claims are, in reality, crude distractions—very much part of the performance—while the real levers of power turn behind the scenes, where laws and policies shift with the choices of a few hundred individuals, each capable of tipping the balance with a single vote.

Keep ReadingShow less
Is Trump Normalizing Military Occupation of American Cities?
Protesters confront California National Guard soldiers and police outside of a federal building as protests continue in Los Angeles following three days of clashes with police after a series of immigration raids on June 09, 2025 in Los Angeles, California.
Getty Images, David McNew

Is Trump Normalizing Military Occupation of American Cities?

President Trump’s military interventions in Los Angeles and Washington, D.C., foretell his plan for other cities.

The Washington Post recently reported on the Pentagon’s plans for a “quick reaction force” to deploy amid civil unrest. And, broad mobilization of the military on U.S. soil could happen under the Insurrection Act, which Trump has flirted with invoking. That rarely used Act allows troops to arrest and use force against civilians, which is otherwise prohibited by longstanding law and tradition.

Keep ReadingShow less