Wide scope of presidential emergency powers could be reined in by Congress this year

Former President Donald Trump used his emergency powers to construct a border wall at the U.S.-Mexico border. In this photo, construction continues on a new section of the barrier on Jan. 8, 2019, as seen from Tijuana, Mexico. (Mario Tama, Getty Images)

WASHINGTON — Senators from both political parties at a Wednesday hearing appeared to be on the same page about limiting presidential emergency powers, striking a bipartisan agreement that Congress should take steps this year to rework a decades-old law.

The National Emergencies Act, approved during the 94th Congress, provides the president with powers they wouldn’t otherwise have and was intended to give lawmakers oversight of those emergencies.

Homeland Security and Governmental Affairs Committee Chairman Gary Peters, a Michigan Democrat, said there are “common sense reforms that would strengthen Congress’ role in exercising oversight of these emergency powers.”

Peters said he looks forward to collaborating with Kentucky Republican Sen. Rand Paul, ranking member on the committee, as the panel works “diligently to make that happen in the coming months.”

“Reforming the National Emergencies Act is not about thwarting the policy goals of either party,” Peters said. “It’s about strengthening our democracy and ensuring Congress maintains the responsibility to oversee executive power.”

‘Dangerous imbalance’

Paul said the current structure of the 1976 law, which was affected by a Supreme Court ruling in the 1980s, creates a “dangerous imbalance of constitutional separations of powers.”

“Congress has been complicit and made itself a feckless branch of the federal government by granting the president so many emergency powers and refusing to regularly vote on termination of national emergencies as required by current law,” he said.

Paul said he hoped the hearing marked the beginning “of a serious and sustained effort to restore the Constitution, reclaim the authority of Congress and protect the liberties of the people by paring back the vast emergency powers delegated to the president.”

Elizabeth Goitein, senior director of the Liberty and National Security Program at the liberal-leaning Brennan Center for Justice, testified there are 43 emergency declarations under the National Emergencies Act in place today, out of 79 total declarations.

That is especially concerning, Goitein said, because “an emergency declaration unlocks powers contained in more than 130 statutory provisions, and some of these carry enormous potential for abuse.”

One emergency power allows the president to take over or shut down wire or radio services, a process last used during World War II when that applied to telephones and telegrams that weren’t in many American homes, she said.

“Today, it could arguably be used to exert control over U.S.-based internet traffic,” Goitein said. “Other laws allow the president to freeze Americans’ assets without any judicial process, to control domestic transportation and even to suspend the prohibition on government testing of chemical and biological agents on unwitting human subjects.”

It would be “irresponsible” of Congress to continue hoping for “presidential self-restraint” to ensure that an executive doesn’t take their emergency powers too far, she testified.

Trump border wall emergency 

Former President Donald Trump, Goitein said, “opened the door to abusing statutory emergency powers when he declared a national emergency to secure funding for the border wall after Congress had refused to provide that funding.”

“President (Joe) Biden nudged the door open a little bit more when he relied on emergency powers to forgive student loan debt,” she added. “Again, after Congress had considered legislation to forgive debt and had not passed that legislation.”

There are several proposals that would require Congress to approve a president’s emergency declaration within 30 days, otherwise it would terminate. And even if a president received congressional approval, they would have to go back to lawmakers a year later to renew the emergency, Goitein said.

Gene Healy, senior vice president for policy at the libertarian Cato Institute, testified that it is “remarkable that we haven’t seen far greater abuses” of presidential emergency powers under the National Emergencies Act.

Congress should “reset” how emergency powers work by “sunsetting presidential emergency declarations after a matter of weeks and requiring actual authorization from Congress to extend them further,” Healy testified.

Lawmakers should review what emergency powers were granted to presidents under the nearly 50-year-old law and take away any that wouldn’t be necessary during a true emergency or that “are especially susceptible to abuse,” he said.

Satya Thallam, senior fellow at the Foundation for American Innovation and a former senior staff member for the panel, said “the sweet spot for any reform is one that is on its face policy neutral and designed to service only the interests of Congress’ lawmaking role vis-à-vis the president, rather than any particular political agenda.”

The Foundation for American Innovation writes on its website that it was established in 2014 in Silicon Valley as Lincoln Labs. Its mission “is to develop technology, talent, and ideas that support a better, freer, and more abundant future.”

Disruption of peaceful transfer of power

In response to a question from Georgia Democratic Sen. Jon Ossoff about how a president could disrupt a peaceful transition of power, Goitein reluctantly testified that she was concerned about the Insurrection Act, which exists outside of the National Emergencies Act.

“The Insurrection Act is a law that allows the president to deploy federal military troops to quell civil unrest or to execute the law in crisis,” she said. “It gives the president extremely broad and judicially unreviewable discretion to deploy troops in ways that could certainly be abused.”

Healy said it would be “prudent” for Congress to “tighten up” the authorities that a president holds under the Insurrection Act.

Paul said he was fully supportive of re-working the Insurrection Act to avoid potential abuses by presidents.

“The Insurrection Act is a thousand times more potent and has the potential for turning the place into, you know, military rule overnight,” Paul said, adding that he’s introduced a bill that would bar presidents from sending the military anywhere without the explicit approval of Congress.

“Our soldiers are great, but they’re not trained to obey the Fourth Amendment, our police are. And even that’s imperfect,” Paul said. “But our police know about the Fourth Amendment. They know they have to get warrants. Armies don’t get warrants.”

Paul said any changes to the Insurrection Act must be “more strict” than changes to the National Emergencies Act, “because you’re talking about putting troops in our cities.”

Paul also said the committee should look closely at the emergency power that could allow a president to essentially turn off the internet during a national emergency, referring to that as the internet kill switch.

“You could become dictator in a day, in a moment, in one executive order,” Paul said.

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