Skip to content
Search

Latest Stories

Top Stories

Deciding what's a national emergency needs to be the work of two branches

Opinion

Donald Trump

Donald Trump was only the most recent president to abuse emergency powers, writes Goitein.

Chip Somodevilla/Getty Images

Goitein is a director of the Liberty and National Security Program at the Brennan Center for Justice,, a progressive think tank at New York University Law School, and a fellow at the University of Chicago's Center for Effective Government.

This is part of a series advocating for parts of legislation soon to be proposed in the House, dubbed the Protecting Our Democracy Act, designed to improve democracy's checks and balances by curbing presidential power.


In the last weeks of Donald Trump's presidency, anxiety grew over what he might do to try to hold on to the White House. Attention focused on emergency powers and whether he could exploit them to block the Electoral College vote count or deploy the military to prevent a peaceful transition of power. As it turned out, Trump wielded the power of an angry mob rather than the emergency authorities granted to the chief executive, and Congress certified the election results nonetheless.

But it would be a serious mistake to wipe our collective forehead and move on.

While invoking emergency powers would not have enabled all the actions people feared, many of them give presidents tools that could be used to undermine democracy.

House Democrats have written sweeping legislation, titling it the Protecting Our Democracy Act, that would significantly reduce these powers' potential for abuse. Congress should enact that bill now, before the memory of our nation's close call fades.

The measure contains two important reforms to emergency powers. The first focuses on the National Emergencies Act, under which presidents may declare a national emergency and thereby unlock enhanced powers contained in more than 120 different statutory provisions. Trump declared more national emergencies than any previous president over a four-year period. Most notably, he declared an emergency in order to secure billions of dollars in federal funding, which Congress had refused to provide, for a wall along the southern border.

Notwithstanding Trump's aggressive use of the NEA, he could have gone much further. Although no laws allow presidents to block vote counts or declare martial law, there is one statute that permits presidents, during a national emergency, to take over or shut down radio stations and communications facilities. Another law allows presidents to freeze the assets of anyone, including any American, for the purpose of addressing a foreign threat. Still others allow presidents to control domestic transportation, prohibit major exports — and even suspend the prohibition on government testing of chemical and biological agents on unwitting human subjects.

Congress' ability to check presidents' exercise of these powers is limited. As originally written in 1976, the NEA allowed Congress to terminate an emergency declaration using a "legislative veto" — a resolution, adopted by simple majorities of the House and Senate, that goes into effect without the president's signature. In 1983, however, the Supreme Court deemed legislative vetoes unconstitutional. Without that mechanism, the only current way for Congress to end a state of emergency against the president's wishes is to pass legislation with veto-proof two-thirds majorities in both the House and Senate.

The new legislation would correct this imbalance of power by requiring emergency declarations to expire after 20 days if not approved by Congress. This would give presidents flexibility in the immediate throes of a crisis, while creating a backstop in the event of presidential overreach or abuse. There is broad bipartisan support for this approach: It is patterned on a measure by conservative GOP Sen. Mike Lee of Utah, which was approved by the Homeland Security Committee in 2019 with the support of 12 of the committee's 14 members.

The new measure also addresses a second, less-well-known category of emergency powers — those reflected in presidential emergency action documents. These are directives drafted in anticipation of an assortment of worst-case scenarios, ready for the president's signature if any such scenario should come to pass. They originated as part of the Eisenhower administration's planning for a possible Soviet nuclear attack.

By Washington standards, presidential emergency action documents are an extraordinarily well-kept secret. None has ever been released or leaked. From other official documents, however, we know that draft directives in the Cold War's early decades purported to authorize martial law, censorship of the press, warrantless searches of property and the roundup and detention of "subversives." The current content of these documents is unknown, but they presumably reflect the outer limit of whatever powers a given administration claims to possess.

That's worrisome, as the executive branch's interpretations of its own power have only expanded in recent decades. Modern administrations increasingly argue the Constitution gives presidents broad "inherent" powers not specified in the actual text. We don't know the full extent of these claimed "inherent" powers because the legal opinions that describe them are often secret. Presidential emergency action documents, which quite likely rely on these claimed powers, are not even shared with Congress. By contrast, even highly classified covert military and intelligence operations must be shared with the Gang of Eight, the top leaders from each party in the House and Senate and the top lawmakers from each party on the two congressional Intelligence committees.

The new legislation includes a provision, modeled on a bill by Democratic Sen. Ed Markey of Massachusetts, that would require disclosure of presidential emergency action documents to the relevant committees of Congress. It would not require or permit public disclosure of any classified information. It would simply enable Congress to perform its constitutionally mandated oversight function, allowing lawmakers to exercise the power of the purse to prevent presidential abuses of power.

Some might argue these reforms are unnecessary now that Trump has left office. But he was not the first president to abuse emergency powers — recall the internment of Japanese Americans during World War II under President Franklin D. Roosevelt and the CIA's torture of detainees after Sept. 11 under President George W. Bush — and he surely will not be the last.

Delaying reform because the potential for abuse has temporarily lessened is the civic equivalent of leaving a leak in the roof unfixed because it just stopped raining. Congress should move swiftly to enact these and other provisions of the new legislation before the next storm hits.

Read More

Pam Bondi Made a Mockery of Congressional Oversight
President Donald Trump holds a press conference with Attorney ...

Pam Bondi Made a Mockery of Congressional Oversight

Checks and balances can only work if government officials are willing to use their authority to check abuses of power by others. Without that, our Constitution is an empty promise.

And without the will to stand up to such abuses, freedom and democracy also become empty promises. As James Madison wrote in Federalist 51, the Constitution was designed to ensure that “the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”

Keep ReadingShow less
Hostages Freed, Questions Remain: Trump’s Role and the Cost of Binary Politics

U.S. President Donald Trump, September 18, 2025.

(Photo by Leon Neal/Getty Images)

Hostages Freed, Questions Remain: Trump’s Role and the Cost of Binary Politics

In February of this year, Kristina Becvar and I published a column in The Fulcrum reaffirming our mission amid a barrage of executive orders from the Trump Administration. We sought to clarify our role—not as partisan commentators, but as stewards of fact-based reporting and healthy self-governance.

We wrote then:

Keep ReadingShow less
From Nixon to Trump: How Scandals Reshape Power, Not Justice

Richard Nixon circa 1983.

(Photo by Images Press/IMAGES/Getty Images)

From Nixon to Trump: How Scandals Reshape Power, Not Justice

The American political system flatters itself with tales of enduring resilience. We are told that each scandal is a crucible, a test from which the republic emerges tougher, wiser, and better fortified. The institutions bend, the story goes, but they do not break. The narrative is comforting because it suggests that corruption is always self-limiting, that crisis is always purgative, that turmoil survived is justice fortified.

But the record tells another story. Scandal after scandal has not made American democracy sturdier. It has hollowed it out, teaching the powerful not restraint, but ever-shrewder ways to transgress.

Keep ReadingShow less
Donald Trump speaking

Donald Trump speaks at at Madison Square Garden in New York, 2024

Peter W. Stevenson /The Washington Post via Getty Images

The Trump Era: A Bitter Pill for American Renewal

In the column, "Is Donald Trump Right?", Fulcrum Executive Editor, Hugo Balta, wrote:

For millions of Americans, President Trump’s second term isn’t a threat to democracy—it’s the fulfillment of a promise they believe was long overdue.

Keep ReadingShow less