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Project

Emergency Powers

Presidents have access to a dizzying range of powers during a declared emergency. We’re working to enhance Congress’s role as a check against abuse of authority.

Overview

Emer­gency powers have exis­ted in coun­tries around the world for centur­ies. Their purpose is simple: to tempor­ar­ily enhance exec­ut­ive power during unex­pec­ted crises that are moving too fast for Congress to respond. The Bren­nan Center’s original research cata­loged 123 stat­utory author­it­ies that become avail­able to the pres­id­ent when he declares a national emer­gency. Many are meas­ured and sens­ible, but others seem like the stuff of author­it­arian regimes: giving the pres­id­ent the power to take over domestic commu­nic­a­tions, seize Amer­ic­ans’ bank accounts, and deploy U.S. troops to any foreign coun­try. Given how broad these powers are, it is crit­ical to have adequate safe­guards in place to prevent abuse.

The National Emer­gen­cies Act, in its current form, lacks those protec­tions. It allows the pres­id­ent to declare emer­gen­cies with noth­ing more than a signa­ture on an exec­ut­ive order, and pres­id­ents can renew those emer­gen­cies every year ad infin­itum. Congress can vote to end an emer­gency, but it effect­ively needs a veto-proof major­ity to do so. 

The prob­lems with this system became very clear when Pres­id­ent Trump declared a fake emer­gency to get fund­ing for his border wall after Congress had denied him the funds. Even though a major­ity of both houses of Congress voted to end this emer­gency, the pres­id­ent was able to over­ride the veto and continue his blatant misuse of emer­gency powers.

The Bren­nan Center is work­ing to fix the legal frame­work for emer­gency powers. We provided original research that helped spur a national conver­sa­tion about the National Emer­gen­cies Act, and our congres­sional testi­mony helped provide a blue­print for reform that has drawn broad bipar­tisan support. And we are bring­ing much-needed public atten­tion to specific emer­gency powers, such as the Insur­rec­tion Act, which deleg­ates a danger­ous amount of discre­tion to the pres­id­ent.

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