A promising opportunity to rein in presidential emergency powers

Senate hearing explores bipartisan reforms to National Emergencies Act

When disaster strikes, the president has the authority to declare a national emergency and unlock a broad range of powers and resources to address the devastation. 

Most Americans are pretty familiar with these kinds of national emergencies — be it a widespread natural disaster, a global pandemic, or a terrorist attack. What’s lesser known, however, is just how vast the president’s power truly is following such a declaration, and what little influence Congress has in checking the president’s emergency powers.

That’s why today’s hearing in the Senate Homeland Security and Governmental Affairs Committee (HSGAC) — led by Chairman Gary Peters (D-MI) and Ranking Member Rand Paul (R-KY) — on potential reforms to the National Emergencies Act (NEA) is so encouraging. It is the first time the Senate has formally revisited the topic of emergency powers since 2019, before we all experienced the COVID-19 pandemic. At first glance, this may seem like your average wonky congressional event, but considering the vast powers within the NEA, it is — in fact — an urgent priority that all Americans should care about.  

What are presidential emergency powers? 

The premise behind emergency powers is an understandable one: in times of truly unexpected national crises, the executive branch needs to be able to act swiftly to protect the national interest. 

Still, Congress knew that delegating these vast powers to the executive branch came with risk, which is why it passed the NEA in 1976 to constrain executive overreach by allowing Congress to terminate a national emergency through a simple concurrent resolution, which didn’t require the president’s signature. Unfortunately, the Supreme Court declared such “legislative vetoes” unconstitutional in 1983, leaving in its wake a regime that  — in the words of one expert — makes emergencies “easy to declare and hard to stop.” 

Since that 1983 decision, both Democratic and Republican administrations have used the NEA to circumvent the presidency’s normal legal constraints in order to achieve policy outcomes that cannot pass through Congress. In recent years, presidents of both parties have taken these efforts to new heights. For example, in 2019, President Trump declared a national emergency at the southern border to override congressional refusal to fund a border wall. And in 2021, President Biden relied on emergency powers to attempt to forgive hundreds of billions in student loans debt during the COVID-19 pandemic.

While these recent abuses are troubling, the potential for more egregious violations of civil rights and liberties are cause for genuine alarm. As the Brennan Center for Justice has documented, the declaration of a national emergency makes available to the president over 130 discrete statutory powers. These include the ability to shut down communications facilities, control domestic transportation, suspend the Clean Air Act, seize Americans’ private property, and even test biological weapons on human subjects. 

Fortunately, today’s Senate hearing demonstrates the increased congressional interest in updating the NEA. As Chairman Gary Peters (D-MI) noted in his opening remarks:

Reforming the National Emergencies Act is not about thwarting the policy goals of either party, it’s about strengthening our democracy and ensuring that Congress maintains the responsibility to oversee executive power. We have had bipartisan support for this reform in the past… and I’m looking forward to considering legislative options that can advance in committee this Congress.

Real momentum behind reform 

Given the strong agreement around the need to reform emergency powers, today’s hearing should serve as an opportunity to jumpstart conversations about legislative options to reform the NEA. Luckily, there is already a potential vehicle to do so.  

Introduced last year by Senators Mike Lee (R-UT) and Richard Blumenthal (D-CT), the ARTICLE ONE Act would require congressional approval to extend a national emergency declaration beyond 30 days.

This legislation strikes a good balance of allowing the president to swiftly respond to natural disasters, national security threats, public health events, and other emergencies with broader legal authorities for a short timeframe, but would also install an appropriate check on these powers after the first 30 days of a crisis. And importantly, this is not only a bipartisan effort but a bicameral one, as the bill has also been introduced in the House by Representatives Chip Roy (R-TX) and Steve Cohen (D-TN) and the House Transportation and Infrastructure Subcommittee on Economic Development, Public Buildings, and Emergency Management hosted a hearing on emergency powers in May 2023.

Protect Democracy has called out misuses of emergency powers in both the Trump and Biden administrations. In 2019, we challenged Trump’s declaration of a national emergency at the Southern border after Congress declined to appropriate $3.6 billion to fund a border wall. We also filed two amicus briefs before the Supreme Court in early 2023 — the first regarding President Biden’s use of the COVID-19 public health emergency to implement his student loan relief program, and the other involving Republican-led states attempting to force the Biden Administration to continue to use COVID-era emergency powers to limit immigration and sidestep asylum laws. 

In order to mitigate the threat of a future authoritarian, we need to ensure that national emergencies are not used to supplant Congress’ role as the primary author of federal policy. Reforming the NEA is a longstanding bipartisan problem in need of bipartisan solutions, and it’s a welcome sign that there is a serious effort to properly check these authorities on Capitol Hill.