President Has Extraordinary Authority Under Emergency Declarations That Have Gone Unchecked

December 5, 2018

A Brennan Center analysis shows need for Congress to rein in powers that are ripe for abuse

MEDIA CONTACT: Mireya “Mia” Navarro, navarrom@brennan.law.nyu.edu, 646-925-8760

The Brennan Center for Justice at NYU Law today released a guide identifying more than 100 emergency powers – from the minor to the catastrophic – that the president can invoke with the stroke of a pen.

The Center today is calling for a congressional review of existing emergency declarations and powers, questioning the need for many of them and warning that some have great potential for abuse.

“Simply by signing his name to an emergency declaration, the president can invoke literally dozens of laws that give him extraordinary powers,” said Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security Program. “Some of these powers seem like the stuff of authoritarian regimes rather than constitutional democracies.”

The issue of presidential emergency powers has recently gained new attention after President Donald Trump threatened to declare the caravan of migrant families approaching the Mexican border a national emergency. Such emergencies can last a decade or more and allow presidents to evade legal restrictions that would otherwise apply across a wide range of government areas, including the military, public health, communications and criminal law.

Some powers seem almost absurdly mundane, such as the one granting Coast Guard officials the ability to serve as notaries public during a national emergency. But others allow the president to shut down or take over radio stations and even suspend a law that prohibits government testing of chemical and biological weapons on unwitting human subjects.

Under the National Emergencies Act of 1976, Congress can end a presidentially declared state of emergency, but in more than 40 years it has never voted to do so.

The Brennan Center’s new guide identifies 136 emergency powers and describes when these laws have been invoked and under what conditions. Most of the powers – 96 of the 136 – can be activated by the president alone, with nothing more than a signature on an emergency declaration. Only 13 of the powers require Congress to declare an emergency, while others can be invoked only under specified conditions.

The Brennan Center’s guide further shows that:

  • Dozens of these laws, a total of 58, are more than 50 years old, and 67 percent of them appear to have never been invoked – raising questions about whether they are truly necessary. 
  • By contrast, six of the powers have been used more than ten times. One power – the International Emergency Economic Powers Act – is often invoked multiple times a year, suggesting a worrisome reliance on “emergency” powers to conduct the ordinary business of government.
  • States of emergency last a long time, and they’re getting longer. Over the last four decades, the average duration of declared emergencies has been 9.6 years. Twenty-five states of emergency have lasted longer than 10 years; 13 of these were declared since 9/11.
  • Some emergency powers are being misused to offer convenient fixes to non-emergency problems. Both President Trump and President Barack Obama invoked non-existent economic crises to decrease or eliminate mandated pay increases for federal workers. 

“It’s clear that the system for national emergencies Congress created in 1976 isn’t working the way it was intended,” the Brennan Center’s Goitein said. “Presidents have already exploited emergency laws to achieve policy goals, and these powers are ripe for much more serious abuses. Congress should start taking a hard look at this system now, before the next emergency.”

Click here for Liza Goitein’s piece on emergency powers in The Atlantic. And view the full guide here.

Link to press release: https://www.brennancenter.org/press-release/president-has-extraordinary-authority-under-emergency-declarations-have-gone-unchecked

The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize – and when necessary, defend – our country's systems of democracy and justice.