Congress Warned About Abuses of Presidential Emergency Powers

Legislators from both parties worry about unilateral power, but they use it when it’s convenient.

If you worry that the U.S. presidency has turned monarchical, you're not alone. Activists across the political spectrum loudly object to the misuse of emergency powers by the White House to bypass debate—at least when they're not cheering on rule by decree. Supreme Court justices also object to the invocation of special powers to address "emergencies" that never end. And so do lawmakers; last week, members of Congress held a hearing on abuse of emergency powers by the executive branch.

Don't hold your breath waiting for reform.

"The powers triggered by a national emergency declaration include authorities that are highly susceptible to abuse," Elizabeth Goitein, Senior Director of the Liberty and National Security Program at the Brennan Center for Justice told members of Congress May 24. "They could be misused to undermine our democracy — and they already have been exploited, by presidents of both parties, to implement long-term policy goals in the face of congressional opposition or inaction. These powers must be subject to meaningful checks against abuse and overreach."

Legislative Concerns Over Presidential Abuses

Goitein spoke at a hearing about the 1976 National Emergencies Act (NEA) held by the House Committee on Transportation & Infrastructure's Subcommittee on Economic Development, Public Buildings, and Emergency Management. Also testifying after opening remarks by Subcommittee Chairman Scott Perry (R–Penn.) were the Niskanen Center's Soren Dayton and Satya Thallam, a policy advisor for Arnold & Porter, a politically prominent law firm.

While the National Emergencies Act was intended to consolidate and formalize emergency powers under congressional oversight, it lost much of its limiting clout when the Supreme Court ruled in INS v. Chadha (1983) that the law's "legislative veto" over emergency executive power is unconstitutional.

"This meant that Congress's built-in check on national emergency powers was no longer viable and transformed its delegation of emergency powers into something far broader than intended," noted Dayton. "Indeed, since Chadha, there have been virtually no checks on the president's national emergency powers."

The abusive potential of the National Emergencies Act shouldn't be news to members of Congress. In July 2020, at the height of pandemic panic when government officials were stretching the limits of their authority in every conceivable way, the Congressional Research Service prepared a report on some of the emergency powers available to the president.

"Although one purpose of the NEA was to end perpetual states of emergency, the law does grant the President authority to renew an emergency declaration," the attorneys who authored the report pointed out. "There are currently 37 national emergency declarations in effect, some of which have been renewed for decades."

Examples given in the report of statutory authorities under the law range from matters as petty as maintaining an island under federal jurisdiction "in its natural state for scientific observation and investigation" except during emergencies, to a more troubling power to "close any radio station…or 'authorize the use or control of any such station'" during emergencies. It's a pretty wide net—and one that repeatedly draws congressional attention.

Both Parties Fret Over Emergency Powers

"Since 1976, when Congress passed the National Emergencies Act, U.S. Presidents have declared the existence of 75 national emergencies, justifying their potential exercise of emergency powers," then-House Judiciary Committee Chairman Jerrold Nadler (D–N.Y.) warned on the occasion of a May 2022 hearing on emergency powers when his party was in the majority. "Of those 75 declarations, more than 40 remain in effect, with the oldest dating back to the 1970s. This means that for nearly five decades, this country has technically been in some form of a state of emergency. That is to say, some Americans have lived their entire lives under emergency rule."

Testifying at the 2022 hearing were familiar names Goitein and Dayton, who also spoke this year and probably have their testimony memorized at this point. Joining them was GianCarlo Canaparo of the Heritage Foundation and Joel W. McCleary, a prominent player in the Democratic party and former White House staffer in the Carter administration who talked "of the latent dictatorial powers a president had and might be tempted to abuse."

Which is to say that congressional committees, under both major parties, have held hearings to voice the same concerns about the abuse of emergency powers, hearing warnings and calls for reform by overlapping experts who largely repeat their testimony. They draw from research done specifically for them that documents a never-ending state of "emergency" that has long been the norm. Surely, there must be bipartisan consensus by now that the presidency's monarchical tendencies need to be curbed so that nobody need live "their entire lives under emergency rule."

Emergency Power Is a Problem Except When It's Convenient

Well, maybe there is. But there's also a consensus in both parties in favor of winning at all costs. A Republican-dominated House might hold hearings on the dangers of emergency powers now, but as that 2020 Congressional Research Service report pointed out, "President Trump invoked the National Emergencies Act to declare a national emergency concerning the Coronavirus Disease 2019…. The President subsequently invoked additional national emergency statutes." And last year's Democratic majority hosted hearings on abuses of executive authority just days after their own colleagues called on President Joe Biden to declare a "national climate emergency" and to wield unilateral power over wide areas of life without the messy business of legislative debate. Biden has made a habit of rule by decree.

"If emergency decrees promise to solve some problems, they threaten to generate others," U.S. Supreme Court Justice Neil Gorsuch recently warned in a statement about the growing use of emergency authority to impose policies. "And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow."

Everybody recognizes the danger inherent in allowing presidents to rule like kings, invoking "emergency" powers that never go away to deal with "emergencies" that often constitute nothing more than the prospect of losing a vote. Powers crafted to fight wars are now used to ride roughshod over opposing opinions—or for convenience, because it's easier to sign executive orders than to win support.

"Advance planning for emergencies is prudent, and there is nothing inherently problematic about drafting orders and directives in advance of foreseeable crises," the Brennan Center's Goitein added during this year's testimony. "But emergencies cannot justify unconstitutional measures, and planning to violate the Constitution or ignore statutory limitations is a grotesque abuse of power."

Unfortunately, as much as they know it's a problem, America's politicians rather like living in a permanent state of emergency.