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National Emergencies Act of 1976 (NEA), the flawed and outdated law that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.