Brennan Center for Justice: Emergency Powers: A System Vulnerable to Executive Abuse

This article first appeared in Democracy: A Journal of Ideas.

“We live in a time of emergencies. In the past three years, a pandemic threatened our health, extreme weather threatened our communities, and Russian aggression threatened the world order. Perhaps the greatest crisis this nation faced during this period, though, was a President who sought to overturn the results of an election—and who toyed with using emergency powers for that purpose. The question, then, becomes: How do we give presidents the tools they need to address emergencies, without giving them the tools to dismantle democracy?

“The answer lies in the Constitution’s balance of powers—a balance that has become dangerously skewed. In a functional system of emergency powers, Congress delegates extraordinary authority to the President, but retains the ability to curtail that authority if the President abuses it. In our current system, though, Congress plays far too weak a role. Presidents of both parties have taken advantage of this state of affairs, exploiting emergency powers to circumvent Congress on questions of policy. Without reforms to strengthen Congress’s hand, a future President could leverage these powers to undermine not just the policymaking process, but democracy itself.

“Emergency Powers in Our Constitutional System

“Emergencies are, by definition, unforeseen and unforeseeable. For that reason, the powers conferred on the government by existing, non-emergency laws might be insufficient to address them. Amending the law to provide greater powers could take too long—or do damage to principles held sacrosanct in ordinary times. Countries around the world have thus adopted emergency powers to give their heads of state a temporary boost in authority until the emergency passes or there is time to adapt the law to new realities.

“Most countries today have constitutions that include special ground rules for emergencies. In many cases, they allow the head of state to override rights that the constitution gives to the people; a small few even allow the head of state to suspend the legislature. Under this model, the normal constitutional order itself may be set aside.

“The United States has taken a different approach. As Justice Robert Jackson put it in 1952, the Framers “knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.” The Constitution thus includes no separate regime for emergencies, and it grants the President no express emergency powers.

“To be sure, presidents have claimed inherent constitutional powers to take extraordinary action during emergencies. Such claims have underpinned some of the worst abuses of executive power in this country’s history, including the internment of Japanese Americans during World War II and the CIA’s torture of detainees at black sites after 9/11. Whether the President has any such powers, and how far they might reach, are questions the Supreme Court has never definitively resolved. But the Court has squarely rejected the notion that emergencies give the President license to defy an otherwise legitimate act of Congress.

“Accordingly, presidents generally rely on Congress to provide them with the authorities they need to address emergencies. And Congress has been generous in doing so: Since the founding of the nation, Congress has passed hundreds of laws giving presidents special powers to address military, economic, and labor crises.

“The National Emergencies Act—Strong Powers, Weak Safeguards

“Since 1976, the most potent statutory framework for the exercise of emergency powers has been the National Emergencies Act (NEA). The law gives the President near-total discretion to declare a national emergency; there are no substantive criteria that must be met. The declaration then unlocks enhanced powers contained in more than 130 statutory provisions scattered across the U.S. Code…”