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It's Past Time Congress Reined in the President’s Emergency Powers

The ARTICLE ONE Act, as recently amended by a Senate committee, would give the National Emergencies Act a crucial update.
Kate Oh,
Former Senior Policy Counsel,
ACLU National Political Advocacy Department
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November 26, 2019

The full Senate could soon consider legislation that would rein in the president's emergency powers and bolster the principle of separation of powers that underpins American democracy. This legislation, the ARTICLE ONE Act as amended by a Senate committee, contains sensible reforms of the National Emergencies Act of 1976 (NEA), the flawed and outdated law that governs the emergency declaration process.

Under the current national emergencies declaration process, Congress must muster a veto-proof two-thirds supermajority to terminate any emergency that the president wants to continue, along with the special powers it activates. Congress has never pulled off this extremely difficult feat, not even this March and October when the majority of lawmakers voted to counter President Trump's unprecedented attempt to usurp Congress's power of the purse by declaring an emergency at the southern border.

This is not the kind of outcome that Congress envisioned when it overhauled the national emergency declaration process during the post-Watergate era. When lawmakers enacted the NEA in 1976, they established the ability of Congress to end an emergency at any time by passing a concurrent resolution, which unlike a joint resolution does not go to the president's desk. However, in 1983 the Supreme Court invalidated this mechanism as an unconstitutional legislative veto, leading to the situation we have now. The ARTICLE ONE Act makes some crucial updates to this faulty framework.

Most notably, the bill would revise the current emergency renewal framework so that a national emergency would automatically expire after an initial 30-day time window — enough time to manage the immediate aftermath of a serious crisis — unless a simple majority of Congress agrees with the president to renew it. The ARTICLE ONE Act would also require the president to seek congressional approval by joint resolution to extend the emergency after the first year and every subsequent year thereafter.

Under the amended measure, existing national emergencies would be subject to annual congressional approval at the end of each emergency's current one-year term as well. Thus, the bill would require more robust collaboration between the executive and legislative branches in renewing national emergencies. It would also further enable stronger oversight by imposing enhanced transparency and reporting requirements on the president.

In today's disturbing status quo, the president enjoys excessive discretion to pick and choose which emergency power to exercise and for how long, potentially in perpetuity. By one leading estimate, a president's declaration of an emergency can unlock more than a hundred other special authorities for that president's use—including sweeping powers with profound, troubling implications for Americans' civil liberties. Furthermore, national "emergencies" can and do persist for years and decades.

Vast executive powers with weak oversight and weak checks against abuse are anathema to our democracy, where the separation of powers between co-equal branches of government is supposed to guard against tyranny. It's now too easy for a president to institute permanent states of "emergency" no matter how inappropriate and too hard for Congress to terminate them. That current system is ripe for extraordinary abuse.

Lawmakers should support reforming the NEA regardless of their stance on any particular emergency declaration. The current president's recent actions merely highlight the longstanding need to restore more accountability to all presidents' access to an enormous array of emergency powers. That need is why the ARTICLE ONE Act's new time limits, approval and oversight mechanisms, and affirmative agreement mechanism would represent major progress.

To be clear, reforming the NEA isn't enough. Congress must follow up by reviewing and overhauling the authorities delegated for the president's "emergency" use — including but not limited to the International Emergency Economic Powers Act and Section 212(f) of the Immigration and Nationality Act. Those laws are worth a mention in this context because they are the basis for exemptions in the bill as amended by committee.

The executive branch has repeatedly used the IEEPA to violate fundamental due process guarantees and the Trump administration has repeatedly relied on INA Section 212(f) as authority for its Muslim ban, asylum ban, and other anti-immigrant proposals. Thus Congress should view updating the NEA as merely the first step toward broader reforms of the emergency powers themselves, particularly these statutes.

In the meantime, lawmakers have a valuable opportunity to reform the National Emergencies Act and restore Congress's ability to supervise presidential declarations of national emergency. For the preservation of our democracy, we urge that they take up this opportunity.

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