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How Congress is pushing back against Trump’s unprecedented use of emergency powers

Unless the laws change, future presidents are more likely to exploit emergency powers, now that Trump has ended the tradition of restraint.

- September 24, 2020

Editors’ note: This article is part of “Rethinking Our Democracy,” a series on institutional reforms to Congress and the presidency, which is a joint initiative by the Center for Effective Government at the University of Chicago and Protect Democracy. All other articles within this series can be found here.

In recent decades, Congress increasingly has delegated broad authorities to the president on the assumption that he or she will exercise those powers responsibly. If this assumption proves false, however, these laws can enable actions Congress never anticipated — including, in some cases, incursions on individual rights. Nowhere is that risk more acute than in the area of presidential emergency powers. Here’s what the law allows, the unprecedented actions President Donald Trump has taken, and the solutions that Congress is considering.

The National Emergencies Act grants the president extraordinary powers with few checks

Unlike most countries’ constitutions, the U.S. Constitution includes no provision for emergency rule. Nor does it grant the president any express emergency powers. As a result, presidents largely rely on Congress to provide the authorities necessary for dealing with emergencies.

Congress has responded by passing many measures that confer extraordinary powers on the president in times of crisis. The most sweeping is the National Emergencies Act (NEA). Under this 1976 law, enacted by a Democratic Congress and Republican President Gerald Ford, the president may declare a “national emergency” at will; the law does not define what constitutes an emergency. A declaration unlocks otherwise-dormant authorities contained in 123 provisions of law.

Some of these provisions grant extraordinary powers. For example, a section of the Communications Act authorizes the president to take over or shut down wire communications facilities, which could be interpreted to give the president control over U.S. Internet traffic. Congress wrote the International Emergency Economic Powers Act (IEEPA) — generally used to impose economic sanctions on foreign adversaries — broadly enough to allow the president to freeze the U.S. assets of anyone, including any American, if the president deems it necessary to address a foreign threat.

The NEA’s main check against abuse was a “legislative veto” provision, which allowed Congress to terminate an emergency declaration using a joint resolution that would take effect without the president’s signature. But the Supreme Court ruled legislative vetoes unconstitutional in 1983. Today, the only way Congress can terminate a declaration is with the support of the president or with supermajority support in both chambers to override a presidential veto. A president is unlikely to sign legislation terminating his or her own emergency declaration, and in today’s hyperpartisan environment, a veto-proof supermajority is nearly impossible to achieve.

Trump has used emergency powers in unprecedented ways

The most remarkable thing about the powers available during a national emergency might be the restraint previous presidents have shown in using them. A study by the Brennan Center shows that nearly 70 percent of these powers remain unused more than 40 years after the NEA’s enactment. Other than IEEPA declarations, which are a standard tool for implementing foreign sanctions, national emergency declarations have been few and far between.

Trump broke the pattern. In February 2019, he declared a national emergency to secure funding for construction of a wall along the southern border. At the time, illegal border crossings were hovering near a 40-year low. The president’s express purpose in using emergency powers was to get around Congress, which had refused to allocate the funds he requested. No previous president had used emergency powers as an end-run around Congress’s power of the purse.

Congress twice voted to terminate the declaration, with 12 Republican senators breaking ranks. Both times, the president issued a veto, and neither chamber mustered the supermajority necessary to override it.

Trump has also made unprecedented use of the license provided by IEEPA. He threatened to use the law to impose tariffs on Mexico and to order U.S. companies out of China — moves Congress almost certainly would have refused to authorize. He issued an IEEPA order authorizing sanctions against International Criminal Court employees involved in investigating U.S. personnel for alleged war crimes in Afghanistan. The apparent intent behind this “emergency” was to undermine international accountability for human rights abuses.

Most recently, Trump authorized IEEPA sanctions against the Chinese-owned apps TikTok and WeChat. A U.S. court has granted an emergency injunction against Trump’s designation of WeChat, saying that it raises serious issues for Americans’ First Amendment rights. It is also likely to cause significant harm to U.S. companies (Apple’s iPhone sales in China will plummet without WeChat in its app store). Some observers think the move is payback for the apps’ hosting of anti-Trump content — and perhaps a warning to social media platforms that have angered the president by fact-checking his posts.

Many lawmakers recognize the need to reform the NEA and the powers it provides

The president’s actions have triggered something exceedingly rare in today’s Congress: bipartisan support for amending the law. After the border wall declaration, Sen. Mike Lee (R-Utah) introduced legislation, the ARTICLE ONE Act, to bolster Congress’s role as a check against abuse. The bill would require national emergency declarations to expire after 30 days unless approved by Congress. Approved declarations would expire after one year; renewing them for additional one-year periods would again require congressional approval.

Although the ARTICLE ONE Act has only Republican co-sponsors (18 of them), the GOP-led Senate Homeland Security Committee passed the measure with the support of all Democratic members. And a nearly identical version of the bill is included in the Congressional Power of the Purse Act, a Democratic reform package.

The ARTICLE ONE Act exempts national emergency declarations that rely solely on IEEPA (although it prohibits the use of IEEPA to impose tariffs). That’s because IEEPA underlies more than 30 foreign sanctions regimes, for which Congress is not eager to inherit responsibility. But there are lawmakers who recognize IEEPA’s potential for abuse. Experts — including former government officials — have proposed alternative approaches to guard against overreach and establish due-process protections for Americans while managing the burden on Congress.

Finally, lawmakers, including Republicans, worry that some of the president’s powers in a national emergency simply go too far. Sen. Rand Paul (R-Ky.) has proposed repealing the provision of the Communications Act that provides a possible “Internet kill switch”; other members are investigating different approaches to curtail its reach.

These efforts may well lose some steam once Trump leaves office. But they are unlikely to go away completely. Members of Congress have a newfound awareness of the law’s shortcomings in this area. And future presidents are more likely to exploit emergency powers, now that Trump has ended the tradition of restraint. Democrats and Republicans alike have an interest in preventing that from happening — which means emergency powers reform will remain a live issue for the foreseeable future.

Elizabeth Goitein (@LizaGoitein) co-directs the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law. She is a contributing author to “The American Crisis: What Went Wrong. How We Recover.” (Simon & Schuster, 2020).