Do you ever get the feeling that your friends and coworkers are talking about an obscure federal statute that you have never heard of before? Have you recently been unable to enjoy sophisticated dinner parties or witty office banter due to an overwhelming fear that you will be asked to explain, on the spot, how the National Emergencies Act of 1976 works?
Don’t worry. You are not alone.
Until recently, most people did not talk regularly about what happens when the president declares a state of national emergency and Congress tries to stop him.
But they are talking about it now.
This primer will help you get up to speed on what they are saying.
Current debate
Congress is presently considering how to respond to President Trump’s decision to build a wall along the southern border without its approval. On February 15, the president announced that he was declaring a state of national emergency to give him the power to repurpose existing federal funding to augment the $1.4 billion that Congress had already given him for the project in the Consolidated Appropriations Act of 2019.
In response, the House passed a resolution (H. J. Res. 46) yesterday to terminate the president’s emergency declaration by a vote of 245 to 182. Thirteen Republicans joined Democrats in supporting the resolution. What will happen next in the Senate is less clear. While Republicans are in the majority there, Susan Collins, R-Maine, Lisa Murkowski, R-Alaska, and Thom Tillis, R-NC, have each indicated that they will join Democrats in supporting a resolution to terminate Trump’s emergency declaration. If they support the resolution, the vote of only one additional Republican would be sufficient to pass the termination resolution in the Senate.
What is the National Emergencies Act?
The effort to pass the National Emergencies Act first began in 1973 when the Senate created the Special Committee on the Termination of the National Emergency. The Senate directed the new committee, which it would eventually rename the Special Committee on National Emergencies and Delegated Emergency Powers, to identify any states of national emergency that were still in effect and to determine the universe of federal statutes that bestowed on the president special powers in such situations.
The committee determined that four national emergencies remained in effect:
The national emergency declared by Franklin D. Roosevelt on March 9, 1933, in response to a banking crisis.
The national emergency declared by Harry S. Truman on December 16, 1950, in response to the North Korean invasion of South Korea.
The national emergency declared by Richard M. Nixon on March 23, 1970, in response to the nation-wide postal strike.
The national emergency declared by Nixon on August 15, 1971, to impose currency restrictions and to enforce controls on foreign trade.
It also identified approximately 475 statutes that bestowed on the president considerable power once an emergency had been declared. Those powers included: the authority to seize property; “institute martial law; seize and control all transportation and communication; regulate the operation of private enterprise.”
Over the following three years, senators worked with their colleagues in the House and administration officials to craft a workable solution to the problems posed by these emergency declarations and the special powers they bestowed upon the president. The result of their effort was the aforementioned National Emergencies Act.
What does it do?
Notwithstanding growing concern among legislators in the mid-1970s about unchecked executive authority, the National Emergencies Act did not limit the president’s ability to declare a national emergency or change the powers bestowed on him when he did. Rather, Congress crafted the law to make it easier to terminate an emergency declaration after it was proclaimed by the president. Frank Church, D-Idaho, one of the leading proponents of the National Emergencies Act, and co-chair of the special committee that helped to craft it, emphasized this point during the Senate debate:
IT SHOULD BE EMPHASIZED THAT NOTHING IN THIS BILL WOULD INTERFERE WITH THE PRESIDENT’S RIGHT TO DECLARE A NATIONAL EMERGENCY IN THE FUTURE OR DEPRIVE HIM OF THE NECESSARY POWER TO COPE WITH SUCH A CRISIS.
In the House, Walter Flowers, D-Ala., made the same point in response to a question posed by Carlos J. Moorhead, R-Calif:
MR. MOORHEAD OF CALIFORNIA. COULD THE GENTLEMAN PLEASE TELL THE HOUSE WHETHER THERE IS ANY INTENT HERE TO LIMIT EITHER THE PRESIDENT’S POWER OR FLEXIBILITY TO DECLARE A NATIONAL EMERGENCY?MR. FLOWERS. THERE IS NOT.
MR. MOORHEAD OF CALIFORNIA. IS THE SUBJECT MATTER OF THE EMERGENCY OR THE TIMING OF ITS DECLARATION LIMITED OR AFFECTED IN ANY WAY?
MR. FLOWERS. IN MY JUDGMENT IT IS NOT.
Instead of limiting the president’s ability to declare a national emergency, the law created a unique process to make it easier for Congress to terminate a presidential emergency declaration after it was proclaimed by the president. According to Church,
THE STATUTES CONFERRING EMERGENCY POWERS REMAIN ON THE SHELF, TO BE PULLED OFF AND USED AS MAY BE REQUIRED TO DEAL WITH SOME FUTURE CRISIS. BUT THE PROCEDURES GOVERNING THE USE OF EMERGENCY POWERS IN THE FUTURE WILL ALWAYS BE SUBJECT TO CONGRESSIONAL REVIEW AND ANY DECLARATION OF AN EMERGENCY MAY BE TERMINATED BY A CONCURRENT RESOLUTION OF THE CONGRESS.
An expedited process
The National Emergencies Act created a unique process to make it easier for Congress to terminate a presidential emergency declaration. Section 202(a) of the law stipulates:
ANY NATIONAL EMERGENCY DECLARED BY THE PRESIDENT IN ACCORDANCE WITH THIS TITLE SHALL TERMINATE IF…CONGRESS TERMINATES THE EMERGENCY.
The law changed the procedures governing the legislative process in the House and Senate to facilitate consideration of resolutions of termination in both chambers. That is, its provisions altered how the legislative process works at the committee level, on the floor, and while resolving differences between House and Senate versions of legislation. The most significant impact of the law was to prevent senators from filibustering resolutions considered pursuant to the unique process that it created. Changes made for each stage of the legislative process are detailed below.
[Note: Before this week, the unique process created by the National Emergencies Act had not been used in the House. The Senate has never considered a resolution to terminate a presidential emergency declaration under the National Emergencies Act.]
Committee consideration
Section 202(c)(1) of the National Emergencies Act requires that a “resolution to terminate a national emergency declared by the president” must, upon introduction by a member of Congress, be referred to the appropriate committee of jurisdiction in that chamber. The committee has a maximum of 15 calendar days from the day after the resolution is assigned to it before it must report the measure along with their recommendations (or are otherwise discharged from its further consideration). Members may vote to extend the time available for committee consideration.
Floor debate
After the committee reports the resolution (or it is otherwise discharged from its further consideration), section 202(c)(2) of the National Emergencies Act stipulates that the measure “shall become the pending business…and shall be voted on within three calendar days.” As before, members may vote to extend the floor debate. The law also stipulates that debate time in the Senate shall be divided between proponents and opponents of the resolution.
Whenever one chamber of Congress passes a resolution of termination, section 202(c)(3) of the National Emergencies Act requires that the other chamber shall refer that resolution to the appropriate committee of jurisdiction for a period not to exceed 15 calendar days from the day after the chamber received the measure. After the committee to which the resolution is referred reports the measure, along with its recommendations, to the full chamber (or is otherwise discharged from its further consideration), members in the fully body have a maximum of three calendar days to debate it beginning on the day after the committee reported it. Members may vote to extend the time allowed for floor debate.
Resolving differences
If the House and Senate pass different versions of a resolution to terminate a presidential emergency declaration, section 202(c)(4) of the National Emergencies Act stipulates that they shall each appoint “promptly” members to participate in a conference committee between the House and Senate to reconcile any differences between the two resolutions. Once appointed, the law directs the conferees to “make and file a report… within six calendar days after the day” when they were appointed. After the conference report is filed, the House and Senate have a maximum of six calendar days before they must vote on it.
The legislative veto
As initially written, the National Emergencies Act specified that the resolution of termination takes the form of a concurrent resolution (i.e., a resolution adopted by the House and Senate that is not presented to the president for his signature and therefore does not become law). Yet in INS v. Chadha (1983), the Supreme Court ruled that Congress could not use a concurrent resolution to veto an otherwise lawful presidential decision. Consequently, Congress amended the National Emergencies Act in 1985 to make it Chadha compliant. It did so by replacing all references in the law to concurrent resolutions (which are not presented to the president and therefore cannot become law) with joint resolutions (which are given to the president and can become law). The change required any resolution of termination passed by Congress to be presented to the president to be signed into law or vetoed. And that made it harder, not easier, for Congress to terminate a presidential emergency declaration because it increased the number of votes required to prevail from a simple majority of the House and Senate to a two-thirds majority (i.e., the threshold needed to override a presidential veto).
James Wallner is a senior fellow of the R Street Institute and member of R Street’s Governance Project and Legislative Branch Capacity Working Group t...
