Congress takes steps to rein in emergency authorities

This Saturday marks the one-year anniversary of President Trump’s declaration of a national emergency, meant to funnel billions of dollars earmarked for military construction and defense to the building of a wall on our southern border.  

Certainly, it was this most recent declaration that sparked the most recent impetus for a renewed push on reforming the National Emergencies Act, but this is by no means a problem solely for Democrats or Republicans. Both parties abuse these powers by using national emergencies as a pretext for dealing with other issues; both parties should be equally concerned with restoring authority back to Congress to balance the use of these powers and ensure—most importantly—that they’re available when an actual emergency arises. 

The debate around the executive’s use of emergency powers centers around these how to strike the right balance between giving the President ample authority to act in defense of the nation, and Congress’s right and need to stay informed and to step in and exercise the will of the electorate.

There is little debate that presidents need the ability to assert broad authority in many kinds of situations—even beyond wartime or emergency situations. For most of history, however, emergency powers were those meant to be used when the president did not have time or could not consult with Congress before taking action. Over the course of both Republican and Democratic administrations, Congress replaced some of those more nebulous authorities with express ones—this was both an expansion of power and a limiting factor.

Now, to “trigger” access to the 136 powers available to the President and Congress during an emergency, the National Emergencies Act, passed in 1976, requires only that the executive must use the word “emergency”-which, incidentally, is not defined in the NEA. Emergencies touch on every subject imaginable nowadays—land use, agriculture, federal pay schedules, transportation, and criminal law—and are exceedingly broad. For example, the International Emergency Economic Powers ActIEEPA)allows the government to freeze any asset or block any financial transaction in which a foreign national has interest, even if the asset belongs to an American or the transaction is between Americans. This particular provision has been invoked nearly every year since 1977. 

In fact, emergency powers can be used that bear no relation to the declared emergency, and can last for decades. The vast majority of emergencies declared are still in effect today and last, on average, 10 years. The longest lasting emergency is nearly 40 years old.

Although Congress can vote to end a national emergency declaration, it’s only done so twice in four decades; both times were to end the national emergency funding the wall at the southern border, but the President vetoed both bicameral, bipartisan resolutions. 

In considering reform, it’s critical to tackle how to better empower Congressional involvement in emergencies, while retaining the ability of the executive to act quickly; how to ensure emergencies are not long-lasting; and how to ensure that emergency powers do not become fast-track options for controversial policy. 

The ARTICLE ONE Act, a bipartisan bill that passed the Homeland Security and Government Affairs committee and is awaiting floor time in the Senate, accomplishes many of these reforms by automatically terminating an emergency after 30 days unless Congress approves (rather than disapprove) of its continuance and requires that emergency declarations cannot last longer than 5 years. 

This legislation (and others like it in the House) is a first step towards re-establishing balance in the presidential emergency declaration framework and enables Congress to more effectively oversee the process.