Skip to content
Search

Latest Stories

Top Stories

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

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.

Sign up for The Fulcrum newsletter

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

As Trump policy changes loom, nearly half of farmworkers lack legal status

Immigrant farm workers hoe weeds in a farm field of produce.

Getty Images//Rand22
Bird Flu and the Battle Against Emerging Diseases

A test tube with a blood test for h5n1 avian influenza. The concept of an avian flu pandemic. Checking the chicken for diseases.

Getty Images//Stock Photo

Bird Flu and the Battle Against Emerging Diseases

The first human death from bird flu in the United States occurred on January 6 in a Louisiana hospital, less than three weeks before the second Donald Trump administration’s inauguration. Bird flu, also known as Avian influenza or H5N1, is a disease that has been on the watch list of scientists and epidemiologists for its potential to become a serious threat to humans.

COVID-19’s chaotic handling during Trump’s first term serves as a stark reminder of the stakes. According to the Centers for Disease Control (CDC) and Prevention, last year, 66 confirmed human cases of H5N1 bird flu were reported in the United States. That is a significant number when you consider that only one case was recorded in the two previous years.

Keep ReadingShow less
People voting
LPETTET/Getty Images

Attention must be paid to working and retired Americans

There is no question that the Democratic Party has lost touch with the working class. Candidates actually rarely use the phrase "working class," while they never stop saying "middle class." Working class, to most Democrats, feels like a pejorative term. Everyone, after all, wants to rise up to the middle class, which makes up 50 percent of the country.

The 35 percent of the public who fit into the working class, in Rodney Dangerfield's terms, don't get no respect.

Keep ReadingShow less
USA China trade war and American tariffs as opposing cargo freight containers in conflict as an economic and diplomatic dispute over import and exports concept as a 3D illustration.
wildpixel/Getty Images

Are Trump's tariffs good for the economy or will they increase prices?

As President-elect Donald Trump prepares to return to the Oval Office, there is much talk about tariffs as the foundation for his economic policy. Trump himself says he’s “a Tariff Man,” and in fact implemented tariffs on a number of countries in his first term. But what are tariffs exactly, and how do they work? What are the pros and cons?

There’s a lot at stake, and like many things “economic,” it’s kind of complicated. So let’s break it down.

Keep ReadingShow less