Good Governance Paper No. 18: Reforming Emergency Powers

[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In these essays, leading experts explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information, you can read the Introduction by the series’ editors.]

In his famous concurring opinion in Youngstown Sheet & Tube Company versus Sawyer (1952), Justice Jackson explained why the framers omitted emergency powers from the Constitution. “They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation,” he wrote. “We may also suspect that they suspected that emergency powers would tend to kindle emergencies.”

Over the past few decades, Congress has granted the president the sweeping emergency powers that the framers declined to provide. Most Americans had little knowledge of these powers until recently—in large part because previous presidents have been relatively sparing in their use. President Trump’s declaration of a national emergency to fund the border wall was a stark wake-up call. When the full panoply of emergency authorities is examined through the lens of how an unscrupulous president might use them, it quickly becomes apparent that the current legal framework puts our democracy at unacceptable risk.

To solve the problem, both procedural and substantive reforms will be necessary. At a minimum, Congress must have the means for learning about and quickly shutting down presidential abuses of emergency powers. That will require amending current law. Specifically, and as discussed further below, Congress should pass the ARTICLE ONE Act and the REIGN Act—or, even better, the  Protecting our Democracy Act, which includes versions of both bills—as well as the DOJ OLC Transparency Act.

Even with such a safeguard in place, though, there are some powers that the U.S. president simply should not have. The relevant committees in Congress—or a special committee, if necessary—should embark on a long overdue examination of statutory emergency powers, with an eye toward amending or repealing those that go too far. The NO BAN Act is a good model; Congress should enact this important immigration law reform, and should develop legislation to reform the International Emergency Economic Powers Act, the Insurrection Act, and other dangerously broad authorities.

The Legal Framework for Emergency Powers in the United States

The Constitution of the United States is highly unusual when it comes to emergency powers. Most other countries’ constitutions include special regimes for emergencies; seventy percent allow the head of state to suspend some or all of the rights accorded to the people by the constitution, while only about a quarter specify rights that cannot be set aside. By contrast, the U.S. Constitution provides no explicit emergency powers to the president, and it permits the suspension of only one right—habeas corpus, which Congress alone may suspend. Accordingly, presidents for the most part rely on Congress to provide them with enhanced authorities in emergencies.

The most sweeping delegation of emergency authorities is embodied in the “national emergencies” framework. Under the 1976 National Emergencies Act (NEA), the president may declare a national emergency, and that declaration unlocks standby powers contained in more than 120 different provisions of law. The NEA includes no definition of “national emergency” and no substantive criteria that must be met; the president need only publish a proclamation in the Federal Register and transmit it to Congress. The declaration automatically terminates after one year, but the president may renew it indefinitely.

The Brennan Center has catalogued the statutory provisions that may be triggered by a declaration of national emergency, along with any instances in which the provisions were invoked. Although many seem quite reasonable, others raise alarm bells. For instance, the Communications Act of 1934 allows the president to take over or shut down radio communications during a national emergency. If he declares a threat of war, the president can also take over or shut down wire communications facilities—a power that could be interpreted today to give the president control over U.S.-based Internet traffic. Another law allows the president to suspend the prohibition on government testing of chemical and biological agents on unwitting human subjects.

The primary check on abuse of these powers, as included in the original NEA, was a provision that allowed Congress to terminate an emergency declaration using a “legislative veto”—a resolution that takes effect without the president’s signature. In 1983, however, the Supreme Court held that legislative vetoes are unconstitutional. Today, Congress can terminate an emergency declaration only by passing a law signed by the president—or, more likely, by mustering a supermajority to override the president’s veto.  That is a very high hurdle in our hyper-partisan times, tilting the NEA’s balance of power decisively in the president’s favor.

In addition to the statutory framework that underlies the NEA, other statutes provide enhanced authorities or resources to address specific types of emergency. Examples include the Stafford Act, which authorizes federal support of state and local authorities during natural or human-made disasters, and the Public Health Service Act (PHSA), which provides for the declaration of “public health emergencies.” While the authorities provided by such statutes tend to be more self-contained, some of them do include disturbingly broad language. For instance, under the PHSA, the Director of the Centers for Disease Control may implement “such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” The breadth of the authority is thus defined by the judgment of one individual.

Some laws that do not require an emergency declaration (or even use the word “emergency”) may nonetheless be viewed as a type of emergency power, because they confer extraordinary powers that are clearly intended for use in extraordinary circumstances. In fact, some of the president’s most potent powers fall into this category. They include the Insurrection Act, under which the president has broad discretion to deploy federal troops to quell civil unrest or enforce the law; section 212(f) of the Immigration and Nationality Act, which allows the president to block the entry of foreign nationals into the United States if he decides that their entry would be “detrimental to the interests of the United States”; and the Defense Production Act, which allows the president to intervene in private production if necessary for the national defense.

Despite these substantial delegations of authority, presidents have not always been content with the powers Congress has given them. Over the past several decades, presidents increasingly have argued that Article II of the Constitution provides them with inherent authority to protect the nation—a power that Congress, in their view, need not approve and cannot limit. This claim was at the heart of the Department of Justice’s (DOJ) legal memos sanctioning the CIA’s torture of detainees and the NSA’s warrantless wiretapping of Americans believed to be in contact with foreign terrorists after 9/11. Americans would not have known about these memos (or programs) if it weren’t for leaks to the media, and while DOJ at the time walked back some of its most extreme conclusions, there is no way to know how far its current interpretations of executive power stretch. In our current era of “secret law”—a problem that spans all three branches of government—every administration takes the position that it is not required to make its legal interpretations public or even share them with Congress.

This brings us to a final category of emergency powers: those reflected in presidential emergency action documents (PEADs). PEADs are presidential directives drafted in anticipation of various hypothetical worst-case scenarios. They originated as part of the Eisenhower administration’s efforts to ensure continuity in the wake of a Soviet nuclear attack, but they have since expanded to address other types of emergencies. None has ever been disclosed or leaked. From other official documents, however, we know that PEADs up to the 1970s purported to authorize martial law, the presidential suspension of habeas corpus, the round-up and detention of “subversives,” censorship of the press, and warrantless seizures of property. These presumably relied on claims of inherent constitutional power, as no statute and no express constitutional provision would have authorized them.

We do not know the content of current PEADs, but we know from an administration budget request that there were 56 such documents in 2018, and that they were in the process of review and revision by the Trump administration.

Presidential Uses of Emergency Powers: Past and Present

Given the broad emergency powers Congress has delegated and the weak checks on their exercise, there has been remarkably little abuse. If one excludes national emergencies declared for purposes of invoking the International Emergency Economic Powers Act (IEEPA), presidents declared national emergencies on only four occasions in the forty-plus years between the NEA’s enactment and President Trump’s border wall declaration—twice in response to foreign attacks (by Cuba and Al Qaeda), once for Hurricane Katrina, and once for the H1N1 pandemic. Moreover, 70% of the statutory powers available during a national emergency appear never to have been used.

IEEPA declarations are an exception. Almost from its inception, IEEPA has been treated as a general delegation of foreign sanctions authority to the president. It is routinely used to advance important U.S. policy goals, regardless of whether a true “emergency” exists. Today, there are 35 national emergency declarations underlying dozens of foreign sanctions regimes. While this routinization of IEEPA use is problematic in many ways, Congress has arguably acceded to and ratified it.

That is not to say that presidents haven’t abused emergency powers. But egregious abuses that rise to the level of human rights violations—such as the mass internment of Japanese Americans during World War II and the CIA’s post-9/11 torture program—have been rare, and they generally have relied on claims of constitutional authority rather than the emergency powers delegated by Congress. Perhaps most notably, no president has attempted to use emergency powers, whether constitutional or statutory, to seize or consolidate his grip on power—e.g., by canceling elections or by suspending Congress or the judiciary. (To be clear, such moves would be flatly unlawful, but a president presumably would put forward a pretextual claim that they were necessary to defend the nation and therefore constitutionally authorized.)

President Trump has broken the pattern of restraint in presidential use of statutory emergency powers. He declared a national emergency to secure funding for a wall along the southern border after Congress expressly withheld the requested funds. He invoked IEEPA to sanction International Criminal Court staff who had the audacity to investigate allegations of human rights abuses by U.S. personnel in Afghanistan. He used emergency powers to try to shut down Chinese-owned apps TikTok and WeChat, violating Americans’ First Amendment rights on the flimsiest of national security premises. He relied on Section 212(f) of the INA to implement the Muslim ban. Using the same provision of law, he followed up with a travel ban on certain African nations, a ban on asylum seekers who enter the U.S. between official ports of entry, and—during COVID-19—a ban on the entry of hundreds of thousands of would-be green card holders and temporary workers.

(Remarkably, the president shied away from using the emergency powers that might actually have helped to mitigate the effects of COVID-19. For instance, he was restrained to a fault in his use of the Defense Production Act, which could have been used much more vigorously to alleviate shortages in personal protective equipment, ventilators, and testing kits. He also delayed declaring Stafford Act and national emergencies out of fear that the markets would react badly, thus harming his reelection chances. As I wrote in a recent special issue of the Journal of National Security Law and Policy, his politically-motivated failure to use applicable emergency authorities was an abuse of power in its own right.)

There is speculation that President Trump might now do what no previous president has done: invoke emergency powers to try to maintain his hold on the White House. Many of the scenarios that have been envisioned—e.g., invoking the Insurrection Act to deploy federal troops at or near polling places—would run up against laws designed to protect voting rights and prevent election interference. Moreover, the Constitution is clear that the president’s term ends on January 20th; if he is not the winner of the 2020 election, no emergency powers can keep him in office. Nonetheless, the concern that the president might attempt such actions cannot lightly be dismissed—and underscores the urgent need for reform of our emergency powers framework.

How Congress Can Reform Emergency Powers

In response to President Trump’s abuses, there have been calls to reform emergency powers, and the idea has gained traction in Congress. There is a danger that this momentum could ebb if Former Vice President Joe Biden wins the election. That would be a mistake. Our current system of emergency powers invites abuse, and the norm of self-restraint that President Trump shattered will not easily be put back together. Sooner or later, another president will follow President Trump’s example and declare a non-existent emergency to get around Congress or to take actions that are otherwise beyond his lawful authorities. If we wait until that happens, it will be too late, as that president would surely veto any reform measure.

National Emergencies Act Reform: To begin, Congress should reform the National Emergencies Act to bolster its own role as a check against abuse. The ARTICLE ONE Act, introduced by Senator Mike Lee, would require any presidentially declared national emergency to expire after 30 days unless approved by Congress. Approved declarations could stay in place for up to a year, but subsequent renewals would also require congressional approval. This common-sense approach would give the president flexibility when needed most—in the immediate aftermath of an emergency—while ensuring that the president cannot arrogate powers Congress did not intend to provide.

The idea of a 30-day limit on presidential emergency declarations has garnered broad bipartisan support. Although the ARTICLE ONE Act’s 18 co-sponsors are all Republicans, the bill was reported out of the Senate Homeland Security and Governmental Affairs Committee with the support of all the committee Democrats. A version of the bill has since been incorporated into two major Democratic reform packages: the Congressional Power of the Purse Act and the Protecting Our Democracy Act.

IEEPA Reform: The ARTICLE ONE Act exempts emergency declarations that rely solely on IEEPA from its congressional approval requirements. This exemption reflects lawmakers’ judgment that it would be impracticable and unnecessary for Congress to vote on several dozen sanctions programs each year. While that may be so, the fact remains that IEEPA is in urgent need of reform. It has been used primarily to impose economic sanctions on hostile foreign actors, but it is written broadly enough to allow the targeting of Americans if the president deems them to be contributing to a foreign threat.

The law should be amended to incorporate robust due process protections for American targets. It also should include a modified congressional approval requirement—one that strikes a balance between burdensome yearly review of individual sanctions programs and the current system, in which no congressional approval is ever required. For instance, sanctions could be made renewable as a package, using expedited procedures that would permit amendment only for the purpose of removing individual sanctions regimes.

Reform of other emergency laws: Several other laws similarly grant too much discretion to the president with too few checks in place. The Insurrection Act, the Communications Act, and Section 212(f) are cases in point. Lawmakers have begun to rethink these authorities; each of them is now the subject of proposed legislation that would implement substantive and/or procedural reforms. Indeed, the NO BAN Act—which would specify criteria that must be met for the president to deny entry to foreign nationals under Section 212(f)—passed the House in July, and Biden has said that he would sign it into law.

Congress should pursue these reforms, but in addition, it should embark on a more methodical, comprehensive examination of statutory emergency powers to identify those authorities that are in need of revision or repeal. (In the “repeal” category: it is impossible to conjure the emergency scenario that would be improved by allowing the government to test chemical weapons on human subjects.)

No secret emergency powers: Finally, there should be no secret executive claims of inherent emergency powers. Senator Ed Markey has introduced legislation, subsequently incorporated into the Protecting Our Democracy Act, to require the president to disclose PEADs to the relevant congressional committees. Congress should enact this simple measure. Congress also should pass legislation, such as the DOJ OLC Transparency Act, to require the disclosure of Department of Justice legal memos—including those that claim executive powers beyond those delegated by Congress.

Ultimately, the correct interpretation of executive power granted in the Constitution is a matter for the courts to decide. Knowing the executive branch’s interpretation, however, would allow members of Congress to weigh in through legislation, make informed decisions about appropriations, conduct oversight, and solicit the views of nominees for relevant positions (e.g., Attorney General).And the public disclosure of Justice Department memos would allow people in this country to express their own views, through democratic debate and the political process, on matters that could profoundly affect their lives and freedoms.

Conclusion

Over time, emergency powers have accumulated and grown more potent, and the checks against possible misuse have grown weaker. Many of these powers could be deployed in ways that would do serious harm to democratic institutions and individual rights, even while remaining within the letter of the law. Congress must step in to reclaim some of the powers it delegated away and to bolster its own role in determining when and how emergency powers should be used. Putting sensible limits on executive discretion is the only way to ensure that emergency powers do not kindle an emergency for our democracy.

  

About the Author(s)

Elizabeth Goitein

Co-Director of the Liberty & National Security Program at the Brennan Center for Justice, Former Counsel to Sen. Russ Feingold Former Trial Attorney in the Federal Programs Branch of the Civil Division of the Department of Justice. You can follow her on Twitter (@LizaGoitein).