Opinion piece by Steve Vladeck
The possibility that President Donald Trump might declare a “national emergency” so that he could gain access to the funds he’d need to build his border wall without a new appropriation from Congress has set off a debate over the troubling scope of the National Emergencies Act of 1976. Earlier in January, Trump claimed he was tabling that idea, but a new report from CNN on Thursday suggests he may yet declare an emergency. Whatever happens, the fact that that option remains a possibility raises some important questions about potential executive overreach.
As most Americans have been surprised to discover, the National Emergencies Act gave the president the power to declare a “national emergency” (and to thereby unlock hundreds of special statutory authorities that are only available in such cases), without defining what a “national emergency” actually is. In the process, Congress left the door wide open, at least legally, for presidents to use the act as a pretext for pursuing policy objectives that, whatever their merits, have little to do with meeting and responding to a genuine emergency.
Whatever ultimately becomes of Trump’s threat, or of the debate over the wall more generally, Congress ought to use this episode as an excuse to revisit the National Emergencies Act — and, more generally, the way in which it delegates these kinds of special powers to the president. In the four decades since Congress originally passed the National Emergences Act, judicial and congressional tweaks have created a flawed and potentially dangerous situation.
It is tempting to think about how the law could be modified to prevent using it as a pretext, including by defining which kinds of emergencies would count. But for a host of reasons, Congress should instead start with a simple procedural reform: Presidential declarations of a national emergency should automatically expire after 30 days. After that time period, the emergency would end and the special authorities would disappear unless Congress agrees to extend them.
The tragic irony of the National Emergencies Act is that, when it was enacted, it was meant to constrain presidential emergency power, not expand it. Congress put a one-year time limit on all national emergencies (while allowing them to be renewed solely by presidential proclamation), and it created a fast-track procedure whereby a simple majority of the House and the Senate could quickly vote to terminate any existing national emergency — even if the president disagreed.
Congress did not try to define what would count as a national emergency, concluding, quite correctly, that it would be impossible to anticipate all of the myriad episodes, attacks, disasters and other crises that might validly trigger these special, standby authorities. Instead, Congress assumed that the statute’s procedural checks (and political safeguards) would be sufficient both formally and practically to deter future presidents from abusing the powers that came with an emergency declaration.
What Congress failed to anticipate was that, just seven years after the statute was enacted, the Supreme Court (in an unrelated case) held that such “legislative vetoes” were unconstitutional. If Congress wants to legislate, the justices concluded, it must go through the formal process laid out in Article I, Section 7 of the Constitution — approval by both Houses and presentment to the president.
Congress shortsightedly responded in kind, amending the National Emergencies Act in 1985 so that only a new statute, rather than majority votes of both Houses, could terminate an emergency. In other words, Congress can only terminate an emergency without the president’s consent today if veto-proof supermajorities (290 members of the House and 67 Senators) agree to do so. Unsurprisingly, no such attempt has been made — let alone succeeded — in the ensuing 34 years.
The same issue has befallen the War Powers Resolution, a statute Congress enacted in 1973 (over President Richard Nixon’s veto) that was intended to rein in the president’s unilateral war powers by giving Congress the power to terminate any unilateral use of force without the president’s consent. As with national emergencies, the War Powers Resolution is predicated on the view that, as a matter of prudence (if not constitutional necessity), the president should be allowed to act in crisis situations for a short period of time without waiting for Congress to pass legislation, but should only be able to act in the longer term with Congress’s acquiescence.
As with the National Emergencies Act, however, the demise of the legislative veto has turned what was supposed to be a meaningful constraint on the president into a blank check. Thus, 17 years after Congress authorized the use of military force against those who attacked us on September 11, the same statute remains on the books, unamended, even as it is used to justify hostilities against groups increasingly far removed from al Qaeda and the Taliban.
In both contexts, the answer should not be controversial: If Congress can’t reserve a role for itself through the legislative veto, the alternative should be a requirement of congressional authorization — and periodic reauthorization — for the unilateral actions we allow presidents to pursue in emergencies. That way, the default is for the president’s authority to lapse in the absence of congressional action, rather than for it to continue in perpetuity.
For instance, if Congress regularly had to reauthorize the 2001 AUMF, it stands to reason that, over time, the statute would have evolved to match the evolving nature of the conflict — and, more fundamentally, that the American people would have more of a role in identifying those we are at war with.
And if any national emergency declared by the president had to be approved by Congress within 30 (or even 60) days, it’s difficult to imagine that Trump would even have mentioned the possibility of using it to build his wall.
Sunsets aren’t a miracle cure to all legislative problems. And even in contexts in which Congress regularly uses them (such as our more controversial surveillance authorities), they don’t guarantee a thoughtful, principled debate over reauthorization when the time comes. But with regard to extraordinary authorities designed for extraordinary times, they at least put the onus on Congress to endorse the president’s resort to such measures, rather than reject them. If reasonable minds can’t agree on anything else about the shutdown and the broader debate over border security, hopefully, we can all at least agree on this.
Steve Vladeck is a professor of law at the University of Texas School of Law
This article was first published on NBC News' Think. Opinions expressed in View articles are solely those of the author.