Recent revelations make clear that advisors to former President Trump fixated on emergency powers in their quest to overturn the results of the 2020 election. As specious as many of those arguments were, they highlight the dangerous overbreadth of the laws in the United States governing national emergencies. Under the post-Watergate National Emergencies Act, a president has unfettered discretion to declare a national emergency, which then unlocks more than 120 statutory powers dispersed throughout the federal code. Some of these authorities seem innocuous, but others, like the authority to seize communications networks, are ripe for abuse. While Congress originally designed the system to enable oversight — and, if necessary, nullification — of these emergency proclamations, the Supreme Court has kneecapped its ability to rein in a wayward executive. Now, states of emergency are the norm, not the exception.
A bipartisan consensus has emerged to reform the National Emergencies Act, and a forthcoming amendment to the Fiscal Year 2023 National Defense Authorization Act (NDAA) reflects that consensus. The amendment would retain presidential flexibility in the immediate aftermath of an emergency, but it would require congressional approval to continue after 30 days, subject to expedited procedures. The amendment contains exemptions for emergencies that exist solely under the International Emergency Economic Powers Act (IEEPA), including the current state of emergency that enables sanctions against Russia. In this year’s NDAA, the Senate has the opportunity to reclaim powers lost to the executive over the course of decades — and to do so in a bipartisan manner. The Brennan Center urges senators to vote in favor of this amendment.