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Statement

Brennan Center Calls for Fundamental Reform of the National Emergencies Act of 1976

On May 10, 2019, the Brennan Center joined a coalition calling on Congress to enact fundamental reforms to the National Emergencies Act of 1976.

Published: May 10, 2019

The Honor­able Mitch McCon­nell, Senate Major­ity Leader

The Honor­able Chuck Schu­mer, Senate Minor­ity Leader

The Honor­able Nancy Pelosi, Speaker of the House

The Honor­able Kevin McCarthy, House Minor­ity Leader

 

Dear Senat­ors McCon­nell and Schu­mer and Repres­ent­at­ives Pelosi and McCarthy:

As a bipar­tisan group of organ­iz­a­tions, all of which work to safe­guard and strengthen our demo­cratic insti­tu­tions, we write to urge you to enact funda­mental reform of the National Emer­gen­cies Act of 1976 (NEA). Such reform is crit­ical to prevent­ing future abuses of emer­gency powers that could be disastrous for our demo­cracy, irre­spect­ive of who occu­pies the White House. 

For the past 100 years, U.S. pres­id­ents have been able to access extraordin­ary powers by virtue of declar­ing a national emer­gency—in­clud­ing powers to shut down commu­nic­a­tions facil­it­ies, seize prop­erty, organ­ize and control the means of produc­tion, assign milit­ary forces abroad, and restrict travel. Until the 1970s, pres­id­ents were able to invoke such emer­gency powers with essen­tially no congres­sional over­sight and no limit on how long a state of emer­gency could last.

Real­iz­ing the danger in this situ­ation, Congress enacted the NEA to bolster its own role and to create protec­tions against the abuse of emer­gency powers. The law contained three primary safe­guards: (1) states of emer­gency would expire after a year unless pres­id­ents renewed them; (2) Congress could termin­ate states of emer­gency at any time using a “legis­lat­ive veto” (a concur­rent resol­u­tion that did not require the pres­id­ent’s signa­ture to become law); and (3) Congress was required to meet every six months while a state of emer­gency was in effect to consider a vote on whether to end it.

The law, however, has not worked as Congress inten­ded. The one-year expir­a­tion period, which was supposed to be the default, has become the excep­tion. There are 32 states of emer­gency in effect today, with the longest dating back to the Iranian host­age crisis of 1979. Addi­tion­ally, in 1983, the Supreme Court ruled that concur­rent resol­u­tions are uncon­sti­tu­tional. To termin­ate an emer­gency, Congress must instead pass a joint resol­u­tion, which becomes law only if the pres­id­ent signs it—or if Congress can muster a super­ma­jor­ity to over­ride his veto. And Congress has simply ignored the require­ment to consider a vote on exist­ing emer­gen­cies every 6 months.

In the absence of mean­ing­ful stat­utory safe­guards, we must instead rely on pres­id­ents to exer­cise self-restraint in the use of these incred­ibly potent powers. But Pres­id­ent Trump’s issu­ance of Proclam­a­tion 9844, in which he declared a national emer­gency to build a wall along the south­ern border after Congress had refused to appro­pri­ate the funds he reques­ted for that purpose, has demon­strated that we need addi­tional guard­rails.

Regard­less of one’s view on whether there should be a phys­ical barrier along our nation’s south­ern border, and in spite of the fact that we view the Pres­id­ent’s action as illegal under the stat­ute as it now stands, Proclam­a­tion 9844 dramat­ic­ally illus­trates some of the NEA’s flaws. Most signi­fic­antly, it high­lights the fatal weak­ness of the role the NEA gives Congress. A major­ity of Congress clearly opposed the emer­gency declar­a­tion: Both Houses of Congress— includ­ing 12 Repub­lic­ans in the Senate—took the unpre­ced­en­ted step of voting to termin­ate it. But the pres­id­ent was able to veto the resol­u­tion, and the emer­gency remains in place.

Further­more, the NEA does not include any stat­utory defin­i­tion of “national emer­gency.” The Trump admin­is­tra­tion has exploited this omis­sion to issue Proclam­a­tion 9844, notwith­stand­ing the fact that immig­ra­tion at the south­ern border fails to meet the most basic diction­ary defin­i­tion of an “emer­gency” because it is not a sudden or unex­pec­ted turn of events. 

There are several merit­ori­ous lawsuits chal­len­ging Proclam­a­tion 9844, and Congress should not aban­don its own efforts to termin­ate the declar­a­tion. But it is not suffi­cient to end this state of emer­gency. Proclam­a­tion 9844 has now set a preced­ent for invok­ing emer­gency powers when Congress does­n’t deliver on a pres­id­ent’s initi­at­ives. And the NEA’s poten­tial for abuse does not end there. For instance, either this pres­id­ent or a future one could use emer­gency powers to erect vari­ous hurdles to a free and fair elec­tion. 

Accord­ingly, we urge you to move quickly to enact NEA reform. That reform should contain, at a minimum, the follow­ing crucial elements:

  • A pres­id­en­tially-declared national emer­gency should auto­mat­ic­ally expire after 30 days (or a simil­arly short period of time) unless Congress votes to extend it. This would give the pres­id­ent ready access to emer­gency powers when he needs them most—i.e., in the imme­di­ate wake of a crisis—but would restore the proper balance of power between the pres­id­ent and Congress in the longer term.
  • The NEA should include a defin­i­tion of “national emer­gency” that is broad enough to cover a wide range of circum­stances while clari­fy­ing that it does not give the pres­id­ent a blank check. 
  • Congress should not be able to extend a state of emer­gency indef­in­itely. The law should estab­lish a maximum period of time for emer­gency rule. “Perman­ent emer­gen­cies” are pois­on­ous to a demo­cracy and corrode the rule of law.
  • Congress should clarify that the powers invoked to address an emer­gency must relate to the nature of, and be used only to address, that specific emer­gency. An emer­gency declar­a­tion cannot give the pres­id­ent access to wholly unre­lated powers.
  • Exist­ing states of emer­gency should not be “grand­fathered,” although a reas­on­able period of time should be allowed to trans­ition out of them in the absence of a Congres­sional vote to extend. 

Several bills have already been intro­duced, in both the House and the Senate, that would imple­ment the first (and most import­ant) of these recom­mend­a­tions. Members of Congress from both parties should work together and build on these efforts. This is not—and should not be made into—a partisan issue. Without NEA reform, it is no exag­ger­a­tion to say that the rule of law and our demo­cratic insti­tu­tions are at risk. At a hear­ing of the House Judi­ciary Commit­tee’s Consti­tu­tion Subcom­mit­tee in Febru­ary, all of the expert witnesses test­i­fied that the NEA is in crit­ical need of reform, and there was strong bipar­tisan agree­ment among the subcom­mit­tee members to that effect. The first NEA reform bill that was intro­duced follow­ing the hear­ing, H.R. 1410, has 12 Demo­cratic and 12 Repub­lican cospon­sors.

NEA reform is thus not only neces­sary, but possible. Congress has the oppor­tun­ity to enact the most import­ant recal­ib­ra­tion of the balance of power between the pres­id­ent and Congress in four decades. For the sake of our demo­cracy, we urge you not to let this rare window of oppor­tun­ity close.

Sincerely,

Bren­nan Center for Justice at NYU School of Law
CREDO Action
Indi­vis­ible
Niskanen Center
Project On Govern­ment Over­sight
Protect Demo­cracy
Public Citizen
Repub­lic­ans for the Rule of Law
Stand Up Repub­lic
Win Without War

cc: Members of Congress