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.

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

​Pledge of Allegiance

The Promoting American Patriotism In Our Schools Act would require all public schools nationally to display the American flag and start the day with the Pledge of Allegiance.

Getty Images, Fuse

Congress Bill Spotlight: Requiring Public Schools Start the Day With the Pledge of Allegiance

The Fulcrum introduces Congress Bill Spotlight, a weekly report by Jesse Rifkin, focusing on the noteworthy legislation of the thousands introduced in Congress. Rifkin has written about Congress for years, and now he's dissecting the most interesting bills you need to know about but that often don't get the right news coverage.

A viral TikTok with 23+ million views, depicting what Americans do and don’t know, showcased a woman who could successfully recite the Pledge of Allegiance but didn’t know the solid form of water was ice.

Keep ReadingShow less
Minimum wage is not enough to afford to rent 'decent' housing in the Midwest

A banner advertising apartments for rent on display in St. Louis. According to the National Low Income Housing Coalition, more people than ever in the Midwest and nationwide are not earning enough money to afford the rent.

Eric Lee/St. Louis Public Radio

Minimum wage is not enough to afford to rent 'decent' housing in the Midwest

In several states, a renter must earn $20 or more per hour to afford apartments being leased at Fair Market Value. Nearly half of Americans don’t make enough money to afford a one-bedroom rental.

Personal stories about struggling to make ends meet appear throughout the report, “Out of Reach: The High Cost of Housing.”

Keep ReadingShow less
America’s Child Care System Relies on Immigrants. Without Them, It Could Collapse

Maggi, a child care provider in New Mexico, works on an art project with a preschooler in her care. Parents have pulled children out of Maggi’s child care program as immigration enforcement has ramped up.

JACKIE MADER/THE HECHINGER REPORT

America’s Child Care System Relies on Immigrants. Without Them, It Could Collapse

This story about immigrants in New Mexico was produced by The Hechinger Report, a nonprofit, independent news organization focused on inequality and innovation in education. Sign up for the Hechinger newsletter.

ALBUQUERQUE, N.M. — Maggi’s home in a suburban neighborhood here is a haven for local families. It’s a place where after just a few weeks in Maggi’s family-run child care program this spring, one preschooler started calling Maggi “mama” and Maggi’s husband “papa.” Children who have graduated from Maggi’s program still beg their parents to take them to her home instead of school.

Keep ReadingShow less
Former President Donald Trump

While the 870-page bill covers a whole host of issues and federal programs, there are four big takeaways from the BBB.

The Washington Post/Getty Images

The Big Beautiful Bill Reflects the Trump Administration’s Priorities, Not America’s

If a budget is a mirror of values, what does the “Big Beautiful Bill” (BBB) say about America?

On July 4, President Donald Trump signed into law Congressional Republicans’ “Big Beautiful Bill.” If you held up the bill to a mirror, most Americans would probably say that what they saw in the reflection was anything but beautiful.

Keep ReadingShow less