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Reining in the President’s Emergency Powers

Deciding what legally constitutes a national emergency needs to be the work of both Congress and the executive branch.

March 29, 2021
Chamber of Congress.
Brendan Hoffman/Getty

This origin­ally appeared in The Fulcrum.

In the last weeks of Donald Trump’s pres­id­ency, anxi­ety grew over what he might do to try to hold on to the White House. Atten­tion focused on emer­gency powers and whether he could exploit them to block the Elect­oral College vote count or deploy the milit­ary to prevent a peace­ful trans­ition of power. As it turned out, Trump wiel­ded the power of an angry mob rather than the emer­gency author­it­ies gran­ted to the chief exec­ut­ive, and Congress certi­fied the elec­tion results nonethe­less.

But it would be a seri­ous mistake to wipe our collect­ive fore­head and move on.

While invok­ing emer­gency powers would not have enabled all the actions people feared, many of them give pres­id­ents tools that could be used to under­mine demo­cracy.

House Demo­crats have writ­ten sweep­ing legis­la­tion, titling it the Protect­ing Our Demo­cracy Act, that would signi­fic­antly reduce these powers’ poten­tial for abuse. Congress should enact that bill now, before the memory of our nation’s close call fades.

The meas­ure contains two import­ant reforms to emer­gency powers. The first focuses on the National Emer­gen­cies Act, under which pres­id­ents may declare a national emer­gency and thereby unlock enhanced powers contained in more than 120 differ­ent stat­utory provi­sions. Trump declared more national emer­gen­cies than any previ­ous pres­id­ent over a four-year period. Most notably, he declared an emer­gency in order to secure billions of dollars in federal fund­ing, which Congress had refused to provide, for a wall along the south­ern border.

Notwith­stand­ing Trump’s aggress­ive use of the NEA, he could have gone much further. Although no laws allow pres­id­ents to block vote counts or declare martial law, there is one stat­ute that permits pres­id­ents, during a national emer­gency, to take over or shut down radio stations and commu­nic­a­tions facil­it­ies. Another law allows pres­id­ents to freeze the assets of anyone, includ­ing any Amer­ican, for the purpose of address­ing a foreign threat. Still others allow pres­id­ents to control domestic trans­port­a­tion, prohibit major exports — and even suspend the prohib­i­tion on govern­ment test­ing of chem­ical and biolo­gical agents on unwit­ting human subjects.

Congress’ abil­ity to check pres­id­ents’ exer­cise of these powers is limited. As origin­ally writ­ten in 1976, the NEA allowed Congress to termin­ate an emer­gency declar­a­tion using a “legis­lat­ive veto” — a resol­u­tion, adop­ted by simple major­it­ies of the House and Senate, that goes into effect without the pres­id­ent’s signa­ture. In 1983, however, the Supreme Court deemed legis­lat­ive vetoes uncon­sti­tu­tional. Without that mech­an­ism, the only current way for Congress to end a state of emer­gency against the pres­id­ent’s wishes is to pass legis­la­tion with veto-proof two-thirds major­it­ies in both the House and Senate.

The new legis­la­tion would correct this imbal­ance of power by requir­ing emer­gency declar­a­tions to expire after 20 days if not approved by Congress. This would give pres­id­ents flex­ib­il­ity in the imme­di­ate throes of a crisis, while creat­ing a back­stop in the event of pres­id­en­tial over­reach or abuse. There is broad bipar­tisan support for this approach: It is patterned on a meas­ure by conser­vat­ive GOP Sen. Mike Lee of Utah, which was approved by the Home­land Secur­ity Commit­tee in 2019 with the support of 12 of the commit­tee’s 14 members.

The new meas­ure also addresses a second, less-well-known category of emer­gency powers — those reflec­ted in pres­id­en­tial emer­gency action docu­ments. These are direct­ives draf­ted in anti­cip­a­tion of an assort­ment of worst-case scen­arios, ready for the pres­id­ent’s signa­ture if any such scen­ario should come to pass. They origin­ated as part of the Eisen­hower admin­is­tra­tion’s plan­ning for a possible Soviet nuclear attack.

By Wash­ing­ton stand­ards, pres­id­en­tial emer­gency action docu­ments are an extraordin­ar­ily well-kept secret. None has ever been released or leaked. From other offi­cial docu­ments, however, we know that draft direct­ives in the Cold War’s early decades purpor­ted to author­ize martial law, censor­ship of the press, warrant­less searches of prop­erty and the roundup and deten­tion of “subvers­ives.” The current content of these docu­ments is unknown, but they presum­ably reflect the outer limit of whatever powers a given admin­is­tra­tion claims to possess.

That’s worri­some, as the exec­ut­ive branch’s inter­pret­a­tions of its own power have only expan­ded in recent decades. Modern admin­is­tra­tions increas­ingly argue the Consti­tu­tion gives pres­id­ents broad “inher­ent” powers not specified in the actual text. We don’t know the full extent of these claimed “inher­ent” powers because the legal opin­ions that describe them are often secret. Pres­id­en­tial emer­gency action docu­ments, which quite likely rely on these claimed powers, are not even shared with Congress. By contrast, even highly clas­si­fied covert milit­ary and intel­li­gence oper­a­tions must be shared with the Gang of Eight, the top lead­ers from each party in the House and Senate and the top lawmakers from each party on the two congres­sional Intel­li­gence commit­tees.

The new legis­la­tion includes a provi­sion, modeled on a bill by Demo­cratic Sen. Ed Markey of Massachu­setts, that would require disclos­ure of pres­id­en­tial emer­gency action docu­ments to the relev­ant commit­tees of Congress. It would not require or permit public disclos­ure of any clas­si­fied inform­a­tion. It would simply enable Congress to perform its consti­tu­tion­ally mandated over­sight func­tion, allow­ing lawmakers to exer­cise the power of the purse to prevent pres­id­en­tial abuses of power.

Some might argue these reforms are unne­ces­sary now that Trump has left office. But he was not the first pres­id­ent to abuse emer­gency powers — recall the intern­ment of Japan­ese Amer­ic­ans during World War II under Pres­id­ent Frank­lin D. Roosevelt and the CIA’s torture of detain­ees after Sept. 11 under Pres­id­ent George W. Bush — and he surely will not be the last.

Delay­ing reform because the poten­tial for abuse has tempor­ar­ily lessened is the civic equi­val­ent of leav­ing a leak in the roof unfixed because it just stopped rain­ing. Congress should move swiftly to enact these and other provi­sions of the new legis­la­tion before the next storm hits.