Doug Smith

Executive Power

We track the national security powers available to the executive branch and work to strengthen legislative and judicial checks.

Bolster Checks & Balances

Why It Matters

Presidential power has been on the rise for a century. Since 9/11 in particular, the powers of the presidency have grown far beyond what the Constitution prescribes — especially on national security issues. This increase in power, coupled with diminished oversight by Congress and the courts, has enabled a range of abuses. And it has gravely undermined our system of checks and balances.

The Brennan Center fights to rein in the growth of executive power and works to restore a system in which the three branches of government act as checks on each other. Our groundbreaking research on emergency powers brought widespread attention to the need to reform this area of presidential authority. We have similarly proposed reforms to laws that grant the president authority to deploy the military domestically — a power that, without sufficient safeguards, can pose a grave threat to democracy and individual liberties. And we have argued that Congress must reclaim its constitutional authority over matters of war and peace, repealing outdated war authorities and reining in presidential warmaking.

Solutions

Reform the National Emergencies Act and Other Emergency Powers

The law should be reformed to impose commonsense constraints on the president’s ability to use — and abuse — emergency powers. Congress should make it easier for Congress to terminate declarations of national emergency — declarations that give the president access to vast powers contained in more than 130 laws. And Congress should reform specific emergency powers, like the International Emergency Economic Powers Act, that are particularly vulnerable to abuse.

Reform Domestic Deployment Authorities

Congress should shore up the Posse Comitatus Act, which prohibits the use of federal military forces for domestic law enforcement purposes absent congressional authorization. At the same time, Congress should narrow the Insurrection Act, an exception to the Posse Comitatus Act that gives the president nearly unbridled discretion to use the military as a domestic police force. And Congress should close loopholes in the law that could facilitate abusive deployments of the National Guard.

Repeal or Reform Overbroad War Authorities

Presidents have stretched Congress’s 2001 and 2002 authorizations for use of military force (AUMFs) beyond recognition. Presidents also have relied on a set of obscure “security and cooperation” authorities to conduct U.S. combat operations without specific congressional authorization and with little transparency or oversight. The 2001 and 2002 AUMFs should be repealed and “security cooperation” laws reformed to ensure that any future combat operations are specifically authorized by Congress. Separately, Congress should repeal the Alien Enemies Act, a wartime detention and deportation authority last used during World War II to intern noncitizens of Japanese, German, and Italian ancestry.

Outdated and Dangerous

Antiquated laws from the 1700s and 1800s give the president tremendous power to use the military at home to quash protests and order mass arrests in times of war and domestic upheaval.