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The Law Governing National Emergencies Needs Fixing

The flaws in the National Emergencies Act must be addressed before our democracy pays hefty consequences.

Last Updated: February 12, 2020
Published: July 31, 2020

This origin­ally appeared in the New York Times.

This week­end will mark one year since Pres­id­ent Trump declared a sham emer­gency at the south­ern border to secure money for a wall Congress refused to fund. During that time, federal judges in three cases have declared the pres­id­ent’s move illegal, and Congress has made history by twice voting to termin­ate the emer­gency.

Yet the emer­gency declar­a­tion remains in place, even as Mr. Trump announced triumphantly in his State of the Union address that “our borders are secure.”

The lesson is clear: The law govern­ing national emer­gen­cies is broken and must be fixed while there is a window of oppor­tun­ity before the elec­tion —  and before our demo­cracy pays a hefty price.

The law in ques­tion is the National Emer­gen­cies Act. This stat­ute author­izes the pres­id­ent to declare a national emer­gency, which in turn gives him access to special powers set forth in more than 100 other provi­sions. Some of these powers seem more suited to a dictat­or­ship than a demo­cracy, like the author­ity to shut down commu­nic­a­tions systems, freeze Amer­ic­ans’ bank accounts and lend armed forces to other nations.

When Congress passed the Emer­gen­cies Act in 1976, it included a crit­ical check against just such abuses. Congress would be able to termin­ate any emer­gency using a so-called legis­lat­ive veto, a law that takes effect without the pres­id­ent’s signa­ture. But in 1983, the Supreme Court held that legis­lat­ive vetoes are uncon­sti­tu­tional, and Congress was forced to amend the law. As it now stands, lawmakers effect­ively have to muster a veto-proof super­ma­jor­ity to end an emer­gency. Before last March, Congress had never even attemp­ted such a vote, even though pres­id­ents had issued 59 emer­gency declar­a­tions since the law went into effect.

It is proof of the unpop­ular­ity of Mr. Trump’s declar­a­tion that Congress voted, not once but twice, to termin­ate the border emer­gency. In the Senate, 12 Repub­lic­ans broke ranks to register their disap­proval — an extraordin­ary show­ing given the party’s record of fealty to Mr. Trump. To achieve a veto-proof super­ma­jor­ity, though, 20 Repub­lic­ans would have had to defy the pres­id­ent on some­thing that he had made a center­piece of his pres­id­en­tial campaign. The result was predict­able: Mr. Trump twice issued a veto, and Congress was unable to over­ride it.

That left the courts as the sole insti­tu­tional back­stop. To date, federal judges have issued rulings in three cases hold­ing the pres­id­ent’s actions unlaw­ful. Other lawsuits, however, have been thrown out based on find­ings that the plaintiffs had no right to sue. Mr. Trump, mean­while, has won the right to continue dipping into the funds while the govern­ment appeals the adverse rulings — and has built 101 miles of new border wall.

Lawmakers from both parties have recog­nized that the system isn’t work­ing. Last July, the Senate Home­land Secur­ity Commit­tee voted 12–2 to pass the Article One Act, intro­duced by Mike Lee, Repub­lican of Utah. Under this bill, pres­id­en­tially declared emer­gen­cies would gener­ally termin­ate after 30 days unless Congress voted to approve them. This would give the pres­id­ent flex­ib­il­ity when he most needs it — in the moment of crisis — but would ensure that Congress could mean­ing­fully weigh in once the dust cleared. The legis­la­tion has broad bipar­tisan support, as the 2020 pres­id­en­tial elec­tion looms and each party considers how these powers might be used if the other side wins. But the bill, like all other legis­la­tion, was moved to the back burner during the impeach­ment proceed­ings.

Without suffi­cient checks, emer­gency powers have the poten­tial to under­mine demo­cracy and core civil liber­ties. Congress needs to restore those checks now, when both parties are oper­at­ing behind the veil of ignor­ance as to who will wield these breath­tak­ing powers in Janu­ary.