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Analysis

2022 Update: Reforming Emergency Powers

One year into the Biden administration, Congress isn’t moving fast enough to reform emergency powers.

February 2, 2022
U.S. presidential podium
Drew Angerer/Getty Images

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.

IEEPA Reform

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.

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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.