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Analysis

Progress Toward Reforming the National Emergencies Act

Senators have advanced a bill that would help prevent the abuse of presidential emergency powers.

July 29, 2019

Congress took a step toward prevent­ing the abuse of pres­id­en­tial emer­gency powers when a Senate commit­tee approved a bill last Wednes­day to reform the National Emer­gen­cies Act (NEA). Known as the Article One Act, the new bill would place greater constraints on the use of national emer­gency declar­a­tions by the pres­id­ent. It passed out of the Senate Home­land Secur­ity and Govern­mental Affairs Commit­tee with a strong bipar­tisan vote of 12–2.

“This bill repres­ents a major step toward reclaim­ing some of the power Congress had deleg­ated away to the pres­id­ent, and thus restor­ing the proper balance of powers,” said Eliza­beth Goitein, co-director of the Bren­nan Center’s Liberty and National Secur­ity Program. Goitein wrote a seminal piece in The Atlantic last Decem­ber that exam­ines the legal frame­work for national emer­gen­cies, and she test­i­fied before a House Commit­tee in Febru­ary high­light­ing the need for reform of the NEA.

The issue of emer­gency powers gained wide­spread atten­tion in Febru­ary 2019 when Pres­id­ent Trump bypassed Congress and declared a national emer­gency to obtain funds for a wall on the south­ern U.S. border. Both cham­bers of Congress proceeded to approve a resol­u­tion to block that emer­gency declar­a­tion, but it ulti­mately fell short of the two-thirds major­ity required to over­ride Trump’s veto, the first of his pres­id­ency. And the Supreme Court last Friday announced it would allow the Trump admin­is­tra­tion to spend $2.5 billion in Pentagon funds on the border wall. In total, Trump has so far declared five national emer­gen­cies during his pres­id­ency, for a total of 33 ongo­ing emer­gen­cies in the United States.

Flaws in the current legal frame­work for emer­gency powers

Emer­gency powers are inten­ded to provide the pres­id­ent with the tempor­ary flex­ib­il­ity to act in the event of a crisis, partic­u­larly when ordin­ary laws might be insuf­fi­cient for a timely response. Declar­ing a national emer­gency vastly expands the power of the exec­ut­ive branch. If misused, these declar­a­tions can lead to an abuse of power and threaten the civil liber­ties of the Amer­ican people.

Congress passed the National Emer­gen­cies Act in 1976 in an attempt to increase congres­sional over­sight and super­vi­sion over pres­id­en­tial declar­a­tions of emer­gency. But the National Emer­gen­cies Act makes the process easy for a pres­id­ent to renew a state of emer­gency and diffi­cult for Congress to end it, in effect requir­ing a veto-proof super­ma­jor­ity for the latter. Among others, these weak­nesses have left the pres­id­ent’s emer­gency powers suscept­ible to abuse.

Giving Congress more over­sight of national emer­gen­cies

If enacted, the Article One Act would address some of the most glar­ing weak­nesses in the current legal frame­work for national emer­gen­cies. Under the act, when a pres­id­ent declares a national emer­gency, Congress must vote to approve it within 30 days, or it would auto­mat­ic­ally expire. Renew­ing an emer­gency declar­a­tion would also require congres­sional approval for every subsequent year. (However, in a signi­fic­ant short­com­ing, the bill provides an excep­tion for emer­gen­cies declared under the power­ful and broadly writ­ten Inter­na­tional Emer­gency Economic Powers Act, or IEEPA, which is frequently invoked.)

The Article One Act prohib­its the pres­id­ent from redeclar­ing an emer­gency that is not renewed by Congress. The bill also includes provi­sions that will make the exer­cise of emer­gency powers more trans­par­ent through enhanced report­ing.

The full Senate should take action to reform the national emer­gen­cies system and provide a check on pres­id­en­tial power. Passing the Article One Act could mark a signi­fic­ant first step.

(Image: Getty)