WASHINGTON – At a hearing Wednesday, senators from both political parties appeared to agree on limiting the president’s emergency powers, reaching bipartisan agreement that Congress should take steps this year to overhaul a decades-old law.
The National Emergencies Act, passed in the 94th Congress, gives the president powers he would not otherwise have and was intended to give lawmakers control over these emergencies.
Homeland Security and Governmental Affairs Committee Chairman Gary Peters, a Michigan Democrat, said there are “common sense reforms that would strengthen Congress’ role in exercising oversight of these emergency powers.”
Peters said he looks forward to working with Republican Senator Rand Paul of Kentucky, the committee’s ranking member, as the panel “works diligently to get this done in the coming months.”
“Reforming the National Emergencies Act is not about thwarting either party’s political goals,” Peters said. “It’s about strengthening our democracy and ensuring that Congress retains responsibility for oversight of the executive branch.”
“Dangerous imbalance”
Paul said the current structure of the 1976 law, which was influenced by a Supreme Court ruling in the 1980s, creates a “dangerous imbalance in the constitutional separation of powers.”
“Congress has been complicit in making itself an incapacitated branch of the federal government by granting the President numerous emergency powers and refusing to regularly vote on ending national emergencies as required by current law,” he said.
Paul said he hoped so Hear marked the beginning of “a serious and sustained effort to restore the Constitution, reclaim the authority of Congress, and protect the liberties of the people by limiting the enormous emergency powers vested in the President.”
Elizabeth Goitein, senior director of the Liberty and National Security Program at the liberal-leaning Brennan Center for Justice, testified that there are currently 43 emergency declarations in effect under the National Emergencies Act, out of a total of 79 emergency declarations.
This is particularly concerning, Goitein said, because “an emergency declaration unleashes powers contained in more than 130 statutory provisions, some of which have enormous potential for abuse.”
Emergency powers allow the president to take over or shut down telephone or radio services. A practice last used during World War II, when it referred to telephones and telegrams not present in many American homes, she said.
“Today, it could arguably be used to control Internet traffic in the United States,” Goitein said. “Other laws allow the president to freeze American assets without trial, control domestic traffic, and even lift the ban on government testing of chemical and biological weapons on unsuspecting people.”
It would be “irresponsible” for Congress to continue to rely on “presidential restraint” to ensure that an executive branch does not over-extend its emergency powers, she said.
Trump’s emergency on the border wall
Former President Donald Trump, Goitein said, “opened the door to abuse of emergency statutory powers when he declared a national emergency to secure funding for the border wall after Congress refused to provide those funds.”
“President [Joe] “Biden opened the door a little wider when he invoked emergency powers to cancel student loan debt,” she added. “This was after Congress considered a debt relief bill and failed to pass that bill.”
There are several proposals that would require Congress to approve a president’s emergency order within 30 days or it would be repealed. And even if a president were to win approval from Congress, he would have to go back to Parliament a year later to renew the state of emergency, Goitein said.
Gene Healy, senior vice president for policy at the libertarian Cato Institute, testified that it was “remarkable that we have not seen far greater abuses” of the president’s emergency powers under the National Emergencies Act.
Congress should “redefine” how emergency powers work by “allowing presidential emergency declarations to expire after a few weeks and requiring actual congressional authorization for their continued extension,” Healy testified.
Lawmakers should review what emergency powers have been granted to presidents under the nearly 50-year-old law and eliminate any that would not be needed in a true emergency or are “particularly vulnerable to abuse,” he said.
Satya Thallam, a senior fellow at the Foundation for American Innovation and a former senior member of the panel, said, “The optimal approach to any reform is one that is, on its face, politically neutral and only serves the interests of Congress in its legislative capacity.” Presidents and not a particular political agenda.”
The Foundation for American Innovation writes on its website that it was founded in Silicon Valley in 2014 as Lincoln Labs. Its mission “is to develop technology, talent and ideas that support a better, freer and more abundant future.”
Interference with the peaceful transfer of power
When asked by Georgia Democratic Senator Jon Ossoff how a president could disrupt a peaceful transition of power, Goitein reluctantly said she was concerned about the Insurrection Act, which exists outside of the National Emergencies Act.
“The Insurrection Act is a law that allows the president to use federal military troops to quell unrest or enforce the law in a crisis,” she said. “It gives the president extremely broad and judicially unreviewable discretion to use troops in ways that could certainly be abused.”
Healy said it would be “prudent” for Congress to “tighten” the president’s powers under the Insurrection Act.
Paul said he fully supports revising the Insurrection Act to prevent potential abuse by presidents.
“The Insurrection Act is a thousand times more powerful and has the potential to turn the country into military rule overnight,” Paul said, adding that he has introduced a bill that would prohibit presidents from sending the military anywhere without express authorization from Congress.
“Our soldiers are great, but they are not trained to follow the Fourth Amendment, our police are. And even that is imperfect,” Paul said. “But our police know the Fourth Amendment. They know to get warrants. Armies don’t get warrants.”
Paul said any changes to the Insurrection Act would have to be “stricter” than changes to the National Emergency Act “because it’s about sending troops into our cities.”
Paul also said the committee should take a close look at the emergency powers that would allow a president to effectively shut down the internet during a national emergency, calling it an “internet kill switch.”
“With a single decree you could become a dictator in a day, in an instant,” Paul said.
