Governing our Crisis Response: National Emergencies and their Spotty Regulation
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JACOB BROWN: We are in a state of national emergency! Or, more precisely, 42 separate states of national emergency. States of national emergency have become ubiquitous in the modern era. There are current national emergencies responding to a wide range of threats from importing information and communication technology to the terrorist attacks of September 11, 2001. National Emergencies are so common because many laws grant certain powers to the president after he/she issues one. There are hundreds of statutes which authorize additional powers during a national emergency, with the most commonly used being the International Emergency Economic Powers Act (IEEPA) which enables investigating, regulating, and sanctioning foreign entities. Other uses of currently active national emergencies enable regulating entering Cuban territorial waters under the Espionage Act and bypassing laws limiting the number of military personnel. With the use of national emergency declarations to garner additional authority so common in the modern era, it is worth understanding just how they work and what oversight over them there is.
A Brief History of National Emergencies and Their Regulation
Declarations of national emergency date back to March 6, 1933 when, in one of his first major actions as President, Franklin Delano Roosevelt declared a national emergency in response to the Great Depression. In an attempt to improve the economy, President Roosevelt created a bank holiday and imposed limits on what people could do with their gold which was still backing the U.S. dollar at the time. However, this declaration of national emergency lasted long after the Great Depression, bank holiday, and gold controls. In fact, it was still in effect forty years later in 1973, granting authority to the president.
By that time, the 1933 declaration had been joined by the 1950 declaration of national emergency which responded to the Korean war, a 1970 emergency declaration in response to a postal strike and a 1971 declaration which responded to the decline of reserves of currency held by the U.S. government in 1971 (this matters for international trade). The authorities granted by these emergencies were not dormant during this time; in 1972 President Nixon invoked the 1950 Korean War national emergency and the 1971 currency reserves emergency to regulate exports.
By 1973, the persistence of these emergencies combined with the amount of power they delegated to the president spurred Congress to look into ways to reign in national emergencies. Congress was not so much concerned about past actions that the President had taken with authority from national emergencies as they were concerned about future actions that the President could take. The Special Committee on the Termination of the National Emergency in the Senate remarked that under the authority granted to a President during a national emergency, they could “seize property; organize and control the means of production… institute martial law.. Restrict travel; and, in a plethora of particular ways” and ultimately “control the lives of all American citizens.” Due to this concern, Congress passed the 1976 National Emergencies Act which remains the main limitation on presidential emergency powers today.
The National Emergencies Act places several key restrictions on national emergencies. It mandates that the executive must publicly publish and send to Congress all declarations of a national emergency and note the specific powers being invoked and the laws they are informed by. The Act also ended previous national emergencies after two years and required that new national emergencies be renewed by the president every year or they expire. Congress also created a way that it could end a national emergency through a resolution requiring a simple majority vote of each chamber. However, the Supreme Court later required that this procedure be subject to a presidential veto rendering it mostly ineffective.
While the National Emergencies Act has increased transparency and possibly has restrained presidents in their use of emergency authority, its provisions have not led to a drop off in the use of national emergencies. In fact, the number of active national emergencies has increased from four in 1973 to 42 today. Furthermore, the act has not done much to limit the length of these national emergencies. President Jimmy Carter declared the current oldest ongoing national emergency in response to the “unusual and extraordinary threat to the national security, foreign policy, and economy of the United States” from the government of Iran. He issued it on November 14, 1979 in order to use the powers of IEEPA to sanction the Iranian government in response to the Iranian Hostage Crisis. The emergency is renewed every year and shows no signs of ending soon.
In fact, the count of 42 active national emergencies somewhat understates the extent of emergency power use by the executive branch. National emergencies have been joined by other structures such as public health emergencies and declarations under the Stafford act although their purposes and regulation are different from those of national emergencies.
In theory Congress could take more action to prevent the rampant use of national emergencies. Even though its authority to actually end national emergencies has been weakened by the Supreme Court, Congress could still hold votes to illustrate their displeasure with national emergencies. Despite that possibility, Congress never voted to end a national emergency declaration until 2019 when it attempted to end President Trump’s national emergency that authorized him to shift funds to construct a wall on the southern border.
Further Potential Reforms
Due to the ultimately weak requirements of the National Emergencies Act and the unwillingness of Congress to push back on the use of national emergencies, it is worth considering whether we need stronger restrictions on the use of national emergencies. The central tension here is between the president’s ability to quickly and flexibly address crises and the executive’s accountability for what they do in responding to these crises.
To some, this may seem an easy choice: flexibility in responding to national crises is crucial and Congress typically is not who we look for to engage with emergencies quickly and substantively. When Congress does respond quickly to national crises, it can have massive unintended consequences like large expansions of government surveillance of American citizens, setting up government structures without thinking through their oversight, and unintentionally giving the president large latitude to engage in armed conflict around the world.
However, it would be shortsighted to not worry about a lack of accountability for the president’s actions. Presidents can and have misused the authority that national emergencies grant. Many Democrats and a fair number of Republicans, viewed President Trump’s national emergency declaration which authorized shifting funds to build a border wall as an abuse of power. Other declarations of a national emergency have also been contentious. There are various resolutions floating around Congress attempting to end the national emergency (not the public health emergency) declared in response to the COVID pandemic. Pressure is mounting to declare a national emergency over Climate Change at the same time that there is a resolution proposed in Congress explicitly condemning such an act. At one point, President Trump even declared a national emergency over the International Criminal Court investigating potential war crimes committed by the U.S. military in Afghanistan. Presidents can and have issued controversial national emergencies in the past and, with increasing political polarization, they will probably continue to do so. The only way to restrain such potential abuses is to increase oversight and accountability for national emergencies.
One possible course of action could be to mandate that Congress affirmatively approve the renewal of a national emergency. This would ensure accountability while still enabling the president to act without Congress’ approval for one year. A more aggressive version of this reform giving only 30 days until Congress has to approve a national emergency was floated in Congress but ultimately was not passed. I personally like this approach because I think that if there is something that truly rises to the level of a national emergency and therefore necessitates additional power, it should not be too difficult to get Congress to approve the action. (Yes, I am aware of how increasing the debt ceiling is somehow not routine despite how not doing so could do severe damage to the U.S. economy, the hope is that true national emergencies are harder to grandstand over in part due to their being easier to explain). Further, as the president has leeway for a whole year, this approach would not place a significant drag on their rapidly and flexibly responding to crises.
However, such a plan is not foolproof. Any plan for dealing with emergencies that involves the words “get the approval of congress” is something we rightfully should be skeptical of. Congress has time and again proven itself to be prone to partisanship and gridlock. However, seeing bipartisan votes in Congress affirming the seriousness of national emergencies might help illustrate the many ways that—despite their fierce rhetoric—both sides agree. Further, we could remove procedural barriers to renewals such as the filibuster to limit partisan grandstanding over national emergency renewals.
Another change I think is worth making, especially in conjunction with the requirement of affirmative renewal from Congress, is splitting national emergencies into two tiers. One tier would have more stringent requirements including the affirmative renewal by Congress. The other would operate much like the current system. The result would be that more dramatic expansions of presidential authority due to emergencies could receive more oversight without hindering the less dramatic and more routine expansions. As an example, it could be that eliminating caps on the size of the armed forces (as was done under the authority granted by a national emergency declaration after September 11, 2001) requires affirmative approval while merely invoking IEEPA to sanction foreign adversaries just requires a declaration similar to what is now required.
The fixes that I have proposed are certainly not perfect, but I think they will make a more accountable system without diminishing the president’s abilities too much. National emergencies play a significant role in how we as a nation respond to crises and the system that underlies them deserves our attention.
Jacob Brown is a freshman studying economics and government. Jacob is from Redmond, Washington, and spends his free time figuring out how fast he can listen to podcasts. He is a member of Georgetown Effective Altruism, the Georgetown Bipartisan Coalition and the Georgetown Moot Court Team.