Today, I testified before the Senate Committee on Homeland Security and Governmental Affairs. Click here to download a pdf of the testimony.
Introduction Chairman Peters, Ranking Member Paul, and members of the committee, thank you for the opportunity to discuss the issue of national emergencies and the National Emergencies Act. In this testimony, I hope to briefly cover three topics:
- The basic structure of the National Emergencies Act.
- The origins of the law.
- Some thoughts on having worked on this issue while at the Committee. Let me discuss each of these briefly in greater detail.
The Conceptual Structure
This dangerous state of affairs is a direct result of Congress’s failure to establish effective means for the handling of emergencies…. Congress, through its own actions, has transferred awesome magnitudes of power to the Executive without ever examining the cumulative effect of that delegation of responsibility.
Though legislative authority is solely granted to Congress in Article I of the Constitution, from the very founding of the Republic itself, the consideration and use of emergency authorities which occupy a somewhat liminal policymaking space were taken as granted. Although early exercises of emergency authority did not begin to take a more formal shape until the 20th century, the existence of circumstances that “have not attained enough of stability or recurrency to admit of their being dealt with according to rule” was generally accepted as meriting exercise of extraordinary authorities when such circumstances presented a significant threat to the republic—when “the existence of conditions [present] danger to life or well-being beyond that which is accepted as normal.”
The fundamental problem is that emergencies are, by their nature, impossible to define ex ante with any precision or temporal certainty. Alexander Hamilton writing in 1791 declared “[t]he means by which national exigencies are to be provided for…are of such infinite variety, extent, and, complexity that there must of necessity be great latitude of discretion in the selection and application of those means.” But if we stipulate, contra Hamilton, that some limitations are in order, then Congress is faced with the impossible task of delineating suitable responses to exigent and often unforeseeable circumstances during which it can delegate effective but limited powers to the Executive Branch.
Nonetheless, over time, Congress has attempted to anticipate categories of emergencies and grant specific authorities therein. For example, during a time of war, a pandemic, or a natural disaster, the President has been granted certain powers to which they otherwise are not entitled in order to respond specifically to that type of emergency. The valid exercise of these powers is laid out in specific statutes, often in response to a recent emergency. However, Congress has only infrequently at best considered these statutes holistically—a particular committee or member of Congress may pursue passage of a statute in the narrow area in which they have jurisdiction or particular interest.
The National Emergencies Act (NEA) was an attempt to overlay a workable structure which both acknowledged the often sui generis and undefinable nature of emergencies to which Congress at various points has seen fit to empower the President to respond, and cabined their use through a mechanism of control. Conceptually, think of the various individual “statutory powers that may become available to the president” in a national emergency (nearly 150 of them) as a set of tools contained in a vault. Prior to the National Emergencies Act, the vault door remained unlocked and so the President could access it at will. After the Act, the door was locked, and though the President had access to the key, Congress had a mechanism to easily take the key away and the door’s lock was subject to a timer. The NEA is not per se the grant of authority, but the key which unlocks those authorities. The NEA was an attempt to regulate use of the key, but largely did not address which authorities in the emergency vault were appropriate or not.
This approach was a reasonable compromise of the inherently unpredictable nature of emergencies and the need for the President to act quickly, but also ensure that Congress as the sole lawmaking branch of government exercised appropriate control. It also ensured that emergencies do not become “never ending” by default. Unfortunately a Supreme Court case several years after passage rendered the NEA’s disapproval mechanism unconstitutional, which required Congress to undertake the same procedure as an entirely new statute in order to terminate an emergency, effectively making the NEA’s mechanism moot.
The NEA’s Origin
It is worth considering how the National Emergency Act came to be. The special bipartisan committee which ended up proposing the idea started with much more modest intentions. The 1972 committee, which “was the only congressional committee of its time to have membership comprised of an equal number of Republicans and Democrats,” was intended only to “assess the consequences of terminating” a specific emergency, that which was “initially declared by President Truman on the eve of the Korean War in 1950.”
During the course of its work, the Special Committee realized the breadth of the emergency authorities that Congress had ceded to the President: ‘‘The President has had extraordinary powers—powers to seize property and commodities, seize control of transportation and communications, organize and control the means of production, assign military forces abroad, and restrict travel.’’
Having identified 470 duly enacted statutory provisions granting emergency authorities, the committee directly pointed the finger back at Congress itself as having created this “dangerous state of affairs,” failing to have “establish[ed] effective means for the handling of emergencies” and having “transferred awesome magnitudes of power to the Executive without ever examining the cumulative effect of that delegation of responsibility.”
Among other things, the NEA established “finely wrought procedures designed to ensure prompt and effective congressional oversight of emergency declarations.” But as discussed earlier, a court case made those procedures in the end subject to Presidential veto, which made terminating emergency declarations subject only to the Executive’s wishes in the absence of veto-proof majorities in both houses.
The NEA was a reasonable and at the time effective meta-structure for the dealing with national emergencies, cabining Presidential exercise of powers, and reclaiming Congress’s rightful policymaking prerogative, that was unfortunately undone through judicial review. With that in mind, I would recommend Congress work to improve (and constitutionally conform) the basic structure, rather than begin anew with an entirely de novo mechanism.
Recent Interest
While I consider it beyond my role in this hearing to endorse or disapprove of any specific NEA reform proposals which may be under consideration by the Committee, renewed interest in the subject merits some discussion. For obvious reasons, Congress has taken an interest in the workings of national emergency declarations, emergency authorities, and Congress’s own prerogatives thereon.
Though the public controversies around recent emergencies tend to focus on the perceived (il)legitimacy around the declaration itself, as alluded to earlier, the declaration is only the means to exercise the policies which affect individuals. The declaration in a way is a statement about the state of the world, and what follows are the actions which are either appropriate or not. That said, because of the unforeseeable nature of emergencies, Congress should focus in the first instance on the declaration of an emergency and how to (1) create a presumption of limitation, premised on the idea that emergencies are by definition time-limited in nature, and (2) reassert Congress’s active role in determining whether an emergency merits the exercise of extraordinary powers to which it is claiming necessity.
One recent proposal seeks to address these issues by establishing a default time window after which an emergency declaration is presumed terminated. Further, it reverses the extant NEA resolution mechanism by turning it into an approval resolution, whereby Congress may choose to extend any emergency through streamlined floor procedures and simple majorities. In this way Congress can cabin emergency declarations in a feasible way while permitting immediate but not unlimited executive action.
One might characterize such an approach as only limiting the President, but it is more appropriately thought of as also providing political legitimacy and granting an Article I imprimatur to an emergency response. Emergencies should be fairly self-evident and as such be able to garner concurrence from the people’s representatives. Never ending emergencies threaten policy certainty, and over time policies undertaken pursuant to an emergency can become embedded into the policy firmament, in the end making it more difficult to end it. This should not be how policy decisions are made.
In my own experience working on NEA reforms as a staffer at this very committee, I witnessed bipartisan agreement on these points. Though Democrats and Republicans were ultimately motivated by different specific emergencies they found to be illegitimate, they found common cause in upholding Congress’s constitutional responsibility, no matter who occupies the White House. To wit, what was originally introduced with exclusively Republican cosponsors was reported by the Committee by voice vote. Further, I do not recall any committee member stating a disagreement with the principle of the legislation, with the only deliberations being around the scope of the bill (e.g., whether it should apply to all emergency declarations including those involving IEEPA).
A policy-neutral mechanism, like that established in the NEA, though in need of updating, is the right corrective to decades of disuse of Congress’s Article I policy muscles. I commend the committee for its interest in this important subject. I thank you and I look forward to your questions.
