Executive Power

Senators Rand Paul and Ron Wyden Pitch New Limitations on Presidential Emergency Powers

The United States is currently operating under 32 different national emergencies. This proposal would require Congress approve those declarations within 72 hours, and again after 90 days.


The United States is currently in a state of emergency. Thirty-two of them, actually.

The two most recent ones have received most of the attention. President Donald Trump declared one earlier this year in order to justify building a wall at the southern border, and he declared the other to block Huawei, a Chinese telecom company, from doing business in the United States. But the longest-running national emergency dates back to 1979, declared by President Jimmy Carter in response to the Iranian hostage crisis. The hostages were released in 1981, but the "national emergency" continues.

These days, the National Emergency Act of 1976 mostly serves as a way to bulk up executive power in order to accomplish such goals as banning trade with Sudan—a national emergency declared under President Bill Clinton in 1997 that's still ongoing—or as a way to get around Congress when it won't approve billions of dollars in spending. It's a convenient tool for ticked off executives, in other words, not the last resort for addressing acute national crises.

Congress can respond to presidential emergency declarations by disapproving of them after the fact, which Congress did earlier this year in response to Trump's border wall emergency. But the president only has to veto those resolutions of disapproval, as Trump did, to keep the emergency in place.

Sens. Rand Paul (R–Ky.) and Ron Wyden (D–Ore.) say that should change. Under a bill the two introduced Wednesday, all presidential emergency declarations would expire after 72 hours unless Congress voted to allow them to continue. In the event of a true national emergency, a president would still be empowered to respond quickly, but passage of the Reforming Emergency Powers to Uphold the Balances and Limitations Inherit in the Constitution (REPUBLIC) Act would transfer ultimately authority back to Congress, the senators say.

"Congress fails its responsibilities to the American people and the constitution when it leaves the executive virtually unchecked to unlock and exercise emergency powers in perpetuity," Paul said in a statement.

In addition to the automatic 72-hour sunset on emergency declarations, the bill would also set an automatic 90 day limit on congressionally approved national emergencies, thus forcing lawmakers to continually renew declarations and allowing older, no-longer-relevant declarations to expire. Paul's and Wyden's bill would also establish an expedited process for Congress to approve presidential emergency declarations and would repeal statutory authority empowering a president to unilaterally control communication technology in the event of an emergency without congressional approval.

Importantly, the bill would not affect presidential powers under the 1977 International Emergency Economic Powers Act, which Trump threatened to use recently to unilaterally impose tariffs on Mexican imports. That law is meant to allow presidents to respond to foreign adversaries with economic sanctions—legally, it is unclear whether tariffs could be part of that response—in the event of a national emergency, and the REPUBLIC Act specifically exempts it from congressional oversight.

Still, Paul and Wyden's proposal would be a step towards reversing the decades-long trend of handing congressional powers over to the executive branch. It's a welcome signal that at least some members of Congress, on both sides of the aisle, are interested in restoring a semblance of balance to the federal government's distribution of powers.

"Presidents have run roughshod over the constitution for far too long because Congress keeps shirking its obligations," Wyden said in a statement about the bill's introduction. "Checks and balances are more than pretty words on a page; they're a bedrock principle of our democracy."