Law that allows president to declare national emergencies needs to be repealed and replaced

If President Trump decides to declare a national emergency to secure resources to build a wall on the border between the United States and Mexico, he will in all likelihood rely on the National Emergencies Act, signed into law by President Gerald Ford in 1976, which authorizes the president to expand his power during a crisis.

Drafted in the context of concern about the growth of an “imperial presidency” stimulated by the war in Vietnam and Watergate, the legislation sought to prescribe appropriate roles for Congress and the President in declaring, defining, executing, overseeing, and terminating states of emergency. {mosads}

“The failure to place emergency rule under firm constitutional guidelines must be considered as a failure by all three branches to carry out their respective constitutional responsibilities,” Sen. Charles “Mac” Mathias (R-Md.) declared during the debate on the bill.  The bill represents an effort “to insure that Congress and the President share equally the responsibility for national policy decisions,” added Sen. William V. Roth (R-Del.).  And so, the law required the president to report to Congress on estimated and actual costs and the statutes under which the executive branch would act. 

Most important, the act stipulated that the emergency could be rescinded by a joint resolution of Congress (amended in 1985, in response to concerns about separation of powers, to allow a presidential veto and, by implication, an override by the House and Senate).

A brief history of declarations of national emergencies in the first half of the twentieth century, the procedures laid out in 1976, and the 58 emergencies declared under the Act in the last 40 years, make it clear that the legislation has not had the intended effect.

The National Emergencies Act should be repealed and replaced.

Before 1976, presidents often declared national emergencies without limiting their scope and duration, citing specific statutes or clauses in the U.S. Constitution authorizing the actions they were taking, or addressing congressional oversight.  Franklin Roosevelt (citing the dubious authority of the Trading with the Enemies Act of 1917) imposed a bank holiday in 1933; Harry Truman sent troops to Korea to deter “communist aggression” in 1950; Richard Nixon reacted to a postal strike in 1970 and a large trade deficit in 1971.  None of these national emergency proclamations has ever been terminated. 

In Youngstown Sheet & Tube Co. v. Sawyer (1952), the Supreme Court ruled Harry Truman’s seizure of steel mills unconstitutional but did not address the president’s power to declare national emergencies.{mossecondads}

The National Emergencies Act of 1976, it is important to note, did not set criteria for declaring a national emergency.  Consequently, according to the Brennan Center for Justice, presidents have declared national emergencies 58 times in the last forty years, thirty-one of which are still in effect, in response to “crises” that have run the gamut, including export control regulations; prohibitions on economic transactions with “certain persons” in or the governments of Nicaragua, Libya, Panama, Iraq, Haiti, Burma, the Sudan, Sierra Leone, Zimbabwe, Syria, Belarus, North Korea, Somalia, Yemen, Ukraine, the Russian Federation, and Taliban in Afghanistan; proliferation of weapons of mass destruction; the 2009 H1N1 influenza epidemic; and sanctions in the event of foreign interference in U.S. elections.

Evidence of a tendency to govern by national emergency and (even more frequently) by executive order, the vast majority of these actions actually lie within the purview of Congress.  A related concern is the identification by the Brennan Center of 123 statutory powers that presidents may use (under certain conditions) when they declare national emergencies, including two that might provide “legal cover” for construction of a wall.  These days, moreover, the Supreme Court is unlikely to scrutinize a declaration of national emergency to discern whether, in reality, an emergency exists.

Given these circumstances, what might be done to recognize, with Thomas Jefferson, that “the way to have a good and safe government is not to trust it all to one, but to divide it among the many” — and preserve and promote a more substantive role for Congress?

A new National Emergencies Act might set forth criteria defining a national emergency, mandate that presidents make a compelling case that the crisis to which they wish to respond fits those criteria and requires urgent action, and submit a plan to be endorsed, amended, or rejected by Congress in 30 days or less.  Congress might also review, revise, and perhaps eliminate statutory provisions currently available in national emergencies and redefine the conditions triggering their use.  These actions would have had little or no downside for any of the 58 national emergencies declared by presidents since 1976.

Combined with congressional and court challenges to executive orders, they might well constitute substantive steps toward greater government transparency and the restoration of a system of checks and balances that is in an advanced state of disarray.

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University, and the co-author (with Stuart Blumin) of Rude Republic: Americans and Their Politics in the Nineteenth Century.