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Congress Considers Taking Back Its Power

Lawmakers are split over Trump’s emergency decree, but broader reform has strong bipartisan support.

March 17, 2019

The following originally appeared in the Wall Street Journal

Congress made history and dealt President Trump a political blow by rejecting his declaration of emergency at the border. But the margins weren’t sufficient to override his Friday veto. The president’s critics are thus likely to lose this legislative battle. Yet a broader war is now afoot to prevent future abuses of emergency powers. With lawmakers from both parties newly awakened to the risks these powers pose, there is a real chance to win it.

Under the National Emergencies Act of 1976, a declaration of national emergency gives the president access to a range of statutory authorities that would otherwise lie dormant. I oversaw research at the Brennan Center for Justice that cataloged 123 such powers, including to shut down radio stations, freeze Americans’ bank accounts and detail troops to any country.

The checks on presidential overreach that Congress established have proved toothless. The law provides that a state of emergency expires after a year unless the president renews it—but serial renewal has become the norm. It mandates that Congress meet every six months to consider votes on whether to end an emergency—but lawmakers have ignored that provision. It originally allowed Congress to terminate emergencies without the possibility of a presidential veto—but the Supreme Court held such “legislative vetoes” unconstitutional in 1983.

Members of Congress have begun to see the danger in this state of affairs. Democrats understand that if Mr. Trump prevails in the courts, he may come back to this well again. Republicans worry that future Democratic presidents could use emergency powers to establish new policies on climate change or guns without Congress’s approval.

During the Senate debate on Mr. Trump’s emergency declaration, even Republicans who voted with the president—including Majority Leader Mitch McConnell, John Cornyn and Tom Cotton—acknowledged the need to revisit the National Emergencies Act. Republican Rep. Tom Reed, joined by seven other Republicans and 12 Democrats, has introduced a bill to require that emergency declarations lapse after 60 days unless approved by Congress.

Republican Rep. Andy Biggs, who backs the president’s border emergency, introduced a bill with an even shorter timeline for congressional approval—30 days. Fifteen Republican senators, including Mike Lee, Ron Johnson, Chuck Grassley and Ben Sasse, are sponsoring similar legislation. Mr. Trump himself tweeted that if Congress wants to “update the law,” he would “support those efforts.”

Congress should seize this rare bipartisan moment. A requirement of congressional approval after 30 or 60 days would be a critical safeguard, but lawmakers shouldn’t stop there. A president wrongly wielding emergency powers could do a great deal of damage in 30 or 60 days. The 1976 law fails to include a definition of “national emergency,” and Congress should establish one. It should be broad enough to cover a range of circumstances without giving the president a blank check. At a minimum, an “emergency” should involve a significant change of circumstances that poses an imminent threat to public health, safety or other important national interests.

Reform legislation should also acknowledge that permanent emergencies are unacceptable. Once approved by Congress, states of emergency should expire after six months unless Congress votes to renew them, and no emergency should exceed five years. Conditions lasting that long are not unforeseen or temporary, which are basic elements of an emergency. They are instead a “new normal,” and if the president’s existing powers are insufficient to address them, Congress should provide new ones.

His tweets notwithstanding, it’s possible President Trump would veto any such changes. But given the strong bipartisan support for reform, Congress might even be able to pass it with a veto-proof majority. That would be the most significant rebalancing of power between the president and Congress in decades—a victory for American democracy that would tower over any wall Mr. Trump manages to build.