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Congress Must Rein in Presidential Emergency Powers

There is bipartisan consensus in favor of reforming emergency powers to restore Congress’s role as a check on executive power.

May 24, 2023

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Presidential declarations of emergency should be rare, short-lasting, and tailored to the emergency that prompts them. Unfortunately, none of these words describe the use of presidential emergency powers in the 21st century.

My colleague Liza Goitein testified before Congress Wednesday about the need to reform the emergency powers that Congress granted the president under the 1976 National Emergencies Act. She explained that there are currently 41 declared national emergencies, most of which have been in place for more than a decade. Eleven emergencies declared during the George W. Bush administration remain in effect, five from the Clinton administration, and one that goes all the way back to the Carter years. 

A condition that remains in place for 10, 20, or 40 (!) years is not an emergency. Within months of any emergency declaration, Congress should be able to meet, deliberate, and perform its legislative duties — reestablishing regular order. Emergency powers grant the president extraordinary discretion, skewing the normal balance of power between Congress and the executive. They are highly prone to abuse and should be deployed only when necessary and for a strictly limited period. 

Some of the emergency powers Congress has made available to the president are so breathtaking in their vastness that they would make an autocrat do a spit take. Presidents can use emergency declarations to shut down communications infrastructure, freeze private assets without judicial process, control domestic transportation, or even suspend the prohibition on government testing of chemical and biological agents on unwitting human subjects.

Congress has long known that these powers are in need of better safeguards. The National Emergencies Act attempted to rein in emergency powers, but it failed. Its requirement that presidents renew emergency declarations annually has become a mere exercise in paperwork — presidents have proven themselves exceedingly reluctant to walk back their own power. Another provision in the law, which allowed Congress to override a presidential emergency declaration by majority vote and without the president’s signature, was declared unconstitutional.  

Congress isn’t blameless. It provided these emergency powers in the first place, including some that clearly lack sufficient guardrails. It also has a legal obligation to review declared emergencies biannually. Until recently, it ignored that duty, preferring to let the executive branch hoard power that should be shared between the branches. 

Now is the time to act. There is bipartisan consensus in favor of reforming emergency powers to restore Congress’s role as a check on executive power. Legislation exists that would limit emergency declarations to 30 days without explicit congressional approval. It’s good commonsense lawmaking, and Congress should pass it immediately. (Like it’s an emergency.)