WASHINGTON — Senators from both parties appear to be on the same page about limiting presidential emergency powers, reaching a bipartisan agreement that Congress should take steps this year to reform decades-old law.
The National Emergencies Act, approved in 1976, was intended to give the president powers he did not otherwise have and to give lawmakers oversight powers in emergencies.
“There are commonsense reforms that would strengthen Congress' role in providing oversight to these emergency powers,” Gary Peters, a Michigan Democrat who chairs the Homeland Security and Governmental Affairs Committee, said at Wednesday's hearing.
Peters said he looks forward to working with the committee's ranking member, Sen. Rand Paul, R-Ky., as the committee “works diligently to make this happen in the coming months.”
“Amending the National Emergencies Act is not about impeding either party's policy goals,” Peters said. “It's about strengthening our democracy and ensuring that Congress maintains its responsibility to check the executive branch.”
'Dangerous imbalance'
Paul said the structure of the 1976 law, which has been influenced by Supreme Court decisions of the 1980s, creates a “dangerous imbalance in the constitutional separation of powers.”
“Congress has conspired to give the president so many emergency powers and then refuse to take regular votes on ending national emergencies as required by current law, making it an ineffective branch of the federal government,” he said.
Paul said he hoped the hearing would mark the beginning of “serious and sustained efforts to restore the Constitution, restore Congress' authority, and protect our civil liberties by curtailing the sweeping emergency powers entrusted to the president.”
Elizabeth Goitin, senior director of the Liberal Democrats and National Security Program at the liberal Brennan Center for Justice, testified that there have been 79 total emergency declarations under the National Emergencies Act, with 43 currently in effect.
Goitin said this is of particular concern because “a state of emergency unleashes powers contained in more than 130 statutory provisions, some of which have significant potential for abuse.”
One of the emergency powers allows the president to take over or cut off wired or wireless service, a power that was last used during World War II to apply to telephones and telegraphs, which were not yet common in many American homes, she said.
“Today, it can be argued that this law can be used to control U.S.-based internet traffic,” Goitin said. “Other laws allow the president to freeze the assets of Americans without judicial process, regulate domestic traffic, and even suspend the government's ban on testing chemical and biological weapons on unknowing subjects.”
She testified that it would be “irresponsible” for Congress to continue to expect “presidential restraint” from causing the president to overuse his emergency powers.
Trump Border Wall Emergency
Goitin said former President Donald Trump “declared a national emergency to secure funding for his border wall after Congress refused to provide it, paving the way for an abuse of statutory emergency powers.”
“president [Joe] “Biden opened the door a little bit by relying on emergency powers to forgive student loan debt,” she added. “Again, Congress considered legislation to forgive the debt but the legislation was not passed.”
Under some proposals, if Congress doesn't approve a presidential emergency declaration within 30 days, the declaration will be invalid. And even if the president gets approval, he would have to consult Congress again before declaring another emergency after a year, Goitin said.
“It's surprising that we haven't seen a more widespread abuse” of the president's emergency powers under the National Emergencies Act, said Jean Healy, senior vice president for policy at the libertarian Cato Institute.
In his testimony, Healey said Congress should “reset” how emergency powers are used by “allowing a president's emergency declaration to expire after a few weeks and requiring actual congressional approval for any further extension.”
He said lawmakers should review emergency powers given to the president under a nearly 50-year-old law and strip away those that are not needed in a true emergency or “particularly prone to abuse.”
“The optimal case for any reform would be one that is ostensibly policy-neutral and designed solely to meet the interests of Congress's lawmaking role vis-à-vis the president, not any particular political agenda,” said Satya Taram, a senior fellow at the Foundation for American Innovation and a former senior staff member at the committee.
The Foundation for American Innovation's website says it was founded in Silicon Valley in 2014 as the Lincoln Laboratory. Its mission is “to develop the technologies, people, and ideas that support a better, more free, and more prosperous future.”
Disrupting the peaceful transfer of power
In response to a question from Georgia Democratic Sen. Jon Ossoff about how the president could disrupt a peaceful transition of power, Goitin reluctantly testified that he was concerned about the Insurrection Act, which exists outside the National Emergencies Act.
“The Insurrection Act is a law that allows the president to deploy federal troops to quell civil unrest or to enforce the law in times of crisis,” she said. “It gives the president extremely broad, discretionary powers that are not subject to judicial review to deploy military forces in ways that can certainly be abused.”
Healey said it would be “prudent” for Congress to “strengthen” the powers the president has under the Insurrection Act.
Paul said he fully supports amending the Insurrection Act to avoid potential abuse by the president.
“The Insurrection Act is a thousand times stronger and could turn this place into a military state overnight,” Paul said, adding that he has introduced legislation that would ban the president from sending troops anywhere without explicit approval from Congress.
“Our soldiers are great, but they're not trained to follow the Fourth Amendment. Our police do, but even that's imperfect,” Paul said. “But our police know about the Fourth Amendment. They know they have to get a warrant. The military doesn't get warrants.”
Paul said any changes to the Insurrection Act would have to be “tougher” than changes to the National Emergencies Act, “because it would mean sending the military into our cities.”
Paul also called emergency powers that allow the president to effectively shut down the internet during a national emergency an “internet kill switch,” and said the committee should take a closer look at it.
“In a day, in a moment, with one executive order, you can become a dictator,” Paul said.
