The laws in the United States governing presidential emergency powers are in dire need of reform. Under the National Emergencies Act of 1976 (NEA), a president has nearly unfettered discretion to declare a national emergency, which then unlocks more than 120 statutory powers. Some of these powers, like the authority to seize communications networks or to exert control over domestic transportation, are highly vulnerable to abuse in ways that could undermine democracy and individual liberties. The NEA provides no meaningful checks against such abuse – indeed, the only way Congress can rein in presidential uses of emergency powers is to pass a law by a veto-proof supermajority.
A bipartisan consensus has emerged to reform the NEA. Provisions passed by the House in December 2021 and reported out of the Senate Homeland Security Committee in 2019 would retain presidential flexibility in the immediate aftermath of an emergency, but would require congressional approval to continue the use of emergency powers after approximately one month. Approved declarations could last up to one year, with any renewals also requiring congressional approval. In addition, the president would be required to submit detailed reports to Congress on any use of emergency powers. In all, 30 Senate Democrats and 20 Senate Republicans have cosponsored legislation including these reforms. In the House, a broadly bipartisan group of representatives sponsored an amendment to include these reforms in the National Defense Authorization Act.
In short, Congress has the opportunity to establish a critical safeguard against presidential abuse of emergency powers — and to do so in a bipartisan manner. The Brennan Center, joined by seventeen prominent national organizations spanning the ideological spectrum, urges congressional leadership to ensure passage of NEA reform in this Congress.