Should Congress Have to Approve a National Emergency Declaration Before it Takes Effect? (H.R. 1410)

What is H.R. 1410?

(Updated December 8, 2021)

This bill — the Guarding Congressional Authority Act — would aim to reassert congressional authority when the executive branch makes an emergency declaration. Under this bill, Congress would have to approve any new emergency declaration within 60 days in order for it to move forward, similar to the War Powers Resolution.

The President would retain the ability to declare a national emergency, but it would be called off without Congressional ratification.

Argument in favor

Presidents have too much power when they declare national emergencies and as a result, they should only be allowed to declare them with Congress’s agreement. This bill would ensure that presidents can’t abuse national emergency declarations to make unilateral policy decisions and subvert the legislature’s checks and balances.

Argument opposed

The broad authorities given to presidents under national emergencies were granted by Congress in recognition of the fact that such situations may require the government to respond more quickly than is possible under normal legislative processes, so tying the president’s hands is counterproductive.

Impact

National emergencies; Congress; and the president.

Cost of H.R. 1410

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Tom Reed (R-NY) introduced this bill to reclaim congressional power from the executive branch and end the practice of governing by national emergency. Rep. John Curtis (R-UT), an original cosponsor of this bill, says:

“This legislation represents an important step to rein in the excessively broad authority that has been delegated to the executive branch and will prevent future circumstances in which legislative leaders rely on the President’s executive authority to let them off the hook for failing to do their jobs. Reasserting our proper role under Article 1 as intended by the Constitution should be a bipartisan priority that all of my colleagues can support.”

In an op-ed letter in The Columbus Dispatch, Rep. Steve Stivers (R-OH), also a cosponsor of this bill, argues that Congress gave too much authority to the executive branch in 1976:

“In 1976, Congress gave away too much of its power to the president in the National Emergencies Act and as a result, every president since Gerald Ford has had access to unfettered executive authority. It is time that Congress reasserted itself as a coequal branch of government, and H.R. 1410 is a step in the right direction.”

Writing in s January/February 2019 edition, Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, argues that there’s too much latitude for presidents during national emergencies:

“Unknown to most Americans, a parallel legal regime allows the president to sidestep many of the constraints that normally apply. The moment the president declares a “national emergency”—a decision that is entirely within his discretion—more than 100 special provisions become available to him. While many of these tee up reasonable responses to genuine emergencies, some appear dangerously suited to a leader bent on amassing or retaining power. For instance, the president can, with the flick of his pen, activate laws allowing him to shut down many kinds of electronic communications inside the United States or freeze Americans’ bank accounts. Other powers are available even without a declaration of emergency, including laws that allow the president to deploy troops inside the country to subdue domestic unrest. This edifice of extraordinary powers has historically rested on the assumption that the president will act in the country’s best interest when using them. With a handful of noteworthy exceptions, this assumption has held up. But what if a president, backed into a corner and facing electoral defeat or impeachment, were to declare an emergency for the sake of holding on to power? In that scenario, our laws and institutions might not save us from a presidential power grab. They might be what takes us down.”

To address these concerns, Goitein suggests that Congress “issue new criteria for emergency declarations, require a connection between the nature of the emergency and the powers invoked, and prohibit indefinite emergencies.”

This bill has 21 bipartisan cosponsors, including 12 Democrats and nine Republicans.

Of Note: President Trump is seeking to use a national emergency declaration to fund the construction of his southern border wall. Trump argues that crime, illegal drugs, and trafficking at the border justify his decision to circumvent Congressional appropriations processes to pay for a border wall. Under Trump’s emergency declaration, the administration plans to divert over $6 billion from several federal accounts to pay for the wall.

However, this action has come under fire from critics who believe it’s unconstitutional and members of Congress with various objections to the use of the emergency declaration, including concerns about separation of powers and the precedent this would set. It’s also being challenged in the courts.

House Democratic Caucus Chairman Hakeem Jeffries (D-NY) argues that there should be bipartisan resistance to the president’s usurpation of the legislative branch’s authority to approve federal spending, saying, “This is not a dictatorship. It's a democracy. [W]e (Congress) have the power of the purse and that prerogative has been invaded by Donald Trump."

Rep. Fred Upton (R-MI), one of the Republicans who voted with Democrats to attempt to override Trump’s veto, said his vote was over concerns about precedent and process:

“I have been a strong supporter of funding for border security and the wall ... But like I have said, the Constitution is clear that spending originates in the Congress. That’s why I voted to override the President’s veto. Using a national emergency and taking money without Congress’ sign-off is an end-around and sets an unfortunate precedent. This was not the process envisioned as written in the Constitution by our Founding Fathers.”

Rep. Sam Graves (R-MO) argues that the president is “well within his legal authority to Congress has provided him” to declare a national emergency.

On March 26, the House of Representatives failed to override Trump’s veto on a congressional resolution blocking the national emergency declaration. The 248-181 vote fell short of the two-third majority needed to block the veto; only 14 Republicans defected to join Democrats in voting for the resolution. After the vote, Trump tweeted:

“Thank you to the House Republicans for sticking together and the BIG WIN today on the Border. Today’s vote simply reaffirms Congressional Democrats are the party of Open Borders, Drugs and Crime!”

By their design, national emergency declarations are unilateral and immediate, giving the president wide authority to invoke a range of powers and override normal processes. The primary restraint on a president’s invocation of this authority is meant to be political, not legal.

However, the president’s powers under a national emergency declaration aren’t infinite. Under the National Emergencies Act of 1976, presidents do indeed have broad authority to declare national emergencies; however, they need to cite specific statutory authority to get the resources and funds they need to respond to national emergencies after the declaration. In the absence of relevant statutory authority, no response to a national emergency should be funded.

The Brennan Center for Justice notes that presidents have declared national emergencies 58 times in the past 40 years, and 31 of those national emergencies remain in effect in response to “crises” that run the gamut, including: export control regulations; prohibitions on economic transactions with “certain persons” in or the governments of Nicaragua, Libya, Panama, Iraq, Haiti, Burma, the Sudan, Sierra Leone, Zimbabwe, Syria, Belarus, North Korea, Somalia, Yemen, Ukraine, the Russian Federation, and Taliban in Afghanistan; proliferation of weapons of mass destruction; the 2009 H1N1 influenza epidemic; and sanctions in the event of foreign interference in U.S. elections.

Media:

• Cosponsoring Rep. John Curtis (R-UT) Press Release
  
• The Atlantic (Context)
  
• New York Times (Context)
  
• NPR (Context)
  
• Politico (Context)