This article was first published in Just Security.
[Editors’ note: At the one-year mark of the Biden administration, Just Security invited authors of the Good Governance Papers – originally published in October 2020 – to provide brief updates on their Papers, which explored actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For 2022, authors were invited to evaluate the Biden administration and/or Congress and, where applicable, to provide additional recommendations. For more information, please read the introductions to the original series and the update series.]
This article discusses issues and recommendations originally outlined in Good Governance Paper No. 18: Reforming Emergency Powers.
The Trump administration illuminated many shortcomings in the laws that confer or constrain presidential power. Among the most flawed—and most dangerous—are the authorities the president may invoke in emergencies. In the October 2020 Good Governance Papers series, I recommended several measures Congress should take to limit these emergency powers’ potential for abuse.
Fifteen months later, there has been some progress—but the danger remains. Fortunately, my concern that Democratic lawmakers might lose their appetite for reining in executive power if Joe Biden won the election has not been borne out. But today’s dysfunctional Congress has limited capacity to legislate, and emergency powers reform does not appear to have made the short list of top priorities. On this critical issue, Congress isn’t moving fast enough and is leaving too much ground uncovered.
This matters because overbroad emergency powers provide a ready mechanism for undermining democracy and entrenching political power. Few people believe that the threat to democracy has passed with President Trump’s 2020 electoral defeat. For those concerned about the state of American democracy, emergency powers reform should be a high priority.
National Emergencies Act Reform
In my 2020 paper, I recommended that Congress enact legislation to reform the National Emergencies Act (NEA) by requiring congressional approval of emergency declarations within 30 days of issuance and on a yearly basis thereafter. This reform is at the heart of the ARTICLE ONE Act, a bill introduced by Senator Mike Lee that garnered 18 Republican cosponsors and was reported out of the Senate Homeland Security and Governmental Affairs Committee in 2019. A version of Sen. Lee’s bill was then included in two major Democratic reform packages introduced in 2020: The Congressional Power of the Purse Act (CPPA) and the Protecting Our Democracy Act (PODA).
NEA reform is the area of emergency powers in which the most progress has been made. In 2021, all three of the above-mentioned bills were reintroduced, and similar NEA reform provisions were incorporated into yet another major reform package: the bipartisan National Security Powers Act (NSPA) (named the National Security Reforms and Accountability Act in the House). PODA was then passed by the House, and in the process, its NEA reform provisions were improved and strengthened.
In theory, given the broad bipartisan support for NEA reform, there is nothing to stop either the ARTICLE ONE Act or the NEA reform provisions of PODA/CPPA/NSPA from moving forward in the Senate. Whether that happens will ultimately depend on whether Senate majority leadership decides to prioritize it.
The International Emergency Economic Powers Act (IEEPA) is one of the most potent authorities the president can invoke in a national emergency, and it has perhaps the highest potential for abuse. In 2020, I wrote that Congress should amend IEEPA to incorporate robust due process protections for American targets and to bolster Congress’s oversight role. In 2021, the Brennan Center issued a report setting forth a detailed legislative reform proposal.
Congress has made little progress on this front. Although some NEA reform bills would apply to IEEPA, the only bills that have advanced in Congress have included an IEEPA carveout, reflecting lawmakers’ reluctance to assume responsibility for voting on several dozen sanctions programs each year. Representative Ilhan Omar introduced a separate proposal for IEEPA reform—the Congressional Oversight of Sanctions Act—in 2020, but the legislation did not advance and Rep. Omar has not reintroduced it in the current Congress.
Early in 2021, the Biden administration committed to a top-to-bottom review of sanctions, and advocates hoped that the review would lead to major policy reforms. But the effort proved to be an enormous disappointment: No concrete policy changes were proposed or implemented. Meanwhile, the devastating impact of IEEPA-based sanctions on the humanitarian crisis in Afghanistan becomes more apparent each day. The administration issued licenses intended to alleviate this problem, but they took months to put in place in some cases and have been only minimally effective, underscoring the need for broader legislative reform.
Reform of Other Emergency Laws
Authorities to deploy the military domestically: In addition to the NEA and IEEPA, my 2020 paper identified several other emergency and “pseudo-emergency” powers that pose a significant risk of presidential overreach. Chief among these is the Insurrection Act—the primary exception to the Posse Comitatus Act, which prohibits the use of federal troops for law enforcement purposes except as authorized by Congress. The Insurrection Act gives the president broad discretion to deploy military forces to suppress civil unrest or enforce the law. Senator Richard Blumenthal introduced legislation in 2020 that would have created safeguards against abuse, but it did not advance, and Sen. Blumenthal has not reintroduced it.
Lawmakers instead have focused on various laws that allow the president to deploy troops for law enforcement purposes without invoking the Insurrection Act or any other exception to Posse Comitatus. Most notably, a nineteenth-century law that pre-dates local government in the District of Columbia grants command and control of the D.C. National Guard to the president. Because D.C. National Guard troops are not considered federal forces unless officially called into federal service, they are not subject to the Posse Comitatus Act, despite the fact that they are always under federal command. The president therefore can use the D.C. National Guard for law enforcement purposes at will—a loophole that President Trump exploited during the protests against police brutality in 2020.
The D.C. National Guard Home Rule Act would solve this problem by transferring command and control of the D.C. National Guard to D.C.’s mayor. Placing the D.C. Guard under local control would bring it in line with every other Guard unit, including those of Guam, Puerto Rico, and the U.S. Virgin Islands. The D.C. National Guard Home Rule Act was included in the version of the National Defense Authorization Act passed by the House in 2021. But in a closed-door process of negotiation with the Senate, the provision was removed. Negotiators have not revealed the reasons for its removal.
Immigration and Nationality Act. Section 212(f) of the Immigration and Nationality Act gives the president blanket discretion to deny entry to any alien or class of aliens if he considers their entry to be “detrimental to the interests of the United States.” President Trump abused this provision to impose his “Muslim Ban,” preventing immigration or travel to the United States from several Muslim-majority nations. Lawmakers responded by introducing the “NO BAN Act,” which would create standards for invocation of Section 212(f) and strengthen congressional oversight of its use. The law passed the House in July 2020.
In 2021, lawmakers reintroduced the bill. Once again, it passed the House—this time with the White House’s support. A companion bill with 42 cosponsors was introduced in the Senate in May 2021 but has not moved.
Communications Act of 1934. Certain provisions of the Communications Act of 1934 give the president power to take over or shut down radio communications facilities in a national emergency, and to take over or shut down wire communications facilities if the president determines there is a “threat of war.” Some observers believe that the latter provision, enacted before most American households had telephones, could be used today to exert control over U.S.-based Internet traffic. Needless to say, a readily available “Internet kill switch” could be a powerful weapon in the hands of a would-be autocrat.
In 2020, bills were introduced in both the House and Senate to either limit these statutory powers or repeal them entirely. However, the bills made no progress post-introduction, and they have not been reintroduced in 2021.
Comprehensive review: In addition to recommending reform of these specific powers, my 2020 paper reiterated a call I made in 2019 for Congress to “embark on a more methodical, comprehensive examination of statutory emergency powers to identify those authorities that are in need of revision or repeal.” The need for a searching review of emergency powers is as pressing now as it was then, but there is no sign that any such review is in the works.
No Secret Emergency Powers
In my 2020 paper, I discussed the troubling category of “presidential emergency action documents” (PEADs), which I described as follows:
PEADs are presidential directives drafted in anticipation of various hypothetical worst-case scenarios. They originated as part of the Eisenhower administration’s efforts to ensure continuity in the wake of a Soviet nuclear attack, but they have since expanded to address other types of emergencies. None has ever been disclosed or leaked. From other official documents, however, we know that PEADs up to the 1970s purported to authorize martial law, the presidential suspension of habeas corpus, the round-up and detention of “subversives,” censorship of the press, and warrantless seizures of property.
I recommended legislation, along the lines of Senator Ed Markey’s REIGN Act, to require the president to disclose PEADs to the relevant congressional committees.
In both 2020 and 2021, the REIGN Act was incorporated into PODA, and it has now also been incorporated into the NSPA. If and when some version of NEA reform advances in the Senate, lawmakers should ensure that it includes the REIGN Act. Congress’s ability to cut off abuses of statutory emergency authorities matters little if the president can fall back on non-statutory authorities that provide even more potent powers. Moreover, to the extent some PEADs might purport to rely on statutory authorities, disclosure of their contents would allow Congress to determine whether legislative reforms are needed to prevent overreach.
Similarly, my 2020 paper recommended that Congress enact legislation requiring greater transparency for the Department of Justice’s legal interpretations. Any executive branch claim to emergency powers beyond those expressly delegated by Congress, or any aggressive executive interpretation of statutory emergency powers, would most likely rely on a legal analysis by the Justice Department’s Office of Legal Counsel (OLC). Lawmakers have introduced several bills—such as Rep. Mike Quigley’s Transparency in Government Act, introduced in March 2021—that would require publication of OLC opinions. However, none of them has progressed in this Congress.
The threat posed by insufficiently checked emergency powers remains acute. The relevant question is not whether the incumbent president is likely to abuse these powers, but whether Congress will take advantage of the current window of opportunity to reform them—before they fall into the wrong hands. That window might not stay open for long. Emergency powers reform should take its rightful place among the other key efforts lawmakers are aggressively pursuing to safeguard American democracy.