Congress’s ability to be a check to the executive branch could be restored under new legislation centering Congress as the decision maker when it comes to executive power expansion. Should this legislation be successful, this chapter in congressional history would mend a broken system of checks and balances. This new bill would bolster congressional oversight, while also remaining in line with the 1983 Supreme Court ruling in INS v. Chadha.
The End of the Legislative Veto
The current lack of congressional authority is due in part to that ruling, which essentially reduced Congress’s role to that of passive bystander when trying to act as a check against executive branch overreach and weigh in on how the president uses emergency powers.
Prior to Chadha, Congress commonly delegated limited rulemaking powers to experts within executive agencies. Congress retained the right to review any action taken by these agencies and affirm or deny it. A denial would mean a vote in either chamber rejecting the action. This vote, known as the legislative veto, served to keep Congress at the helm of rulemaking. The logic was that when Congress delegated specific authority to the executive branch, it still had the obligation to oversee the use of that authority.
But in their 7-2 ruling in INS v. Chadha, the Supreme Court found that the legislative veto was an unconstitutional violation of the separation of powers doctrine. The court asserted that legislative vetoes — and most other actions by Congress — needed to be categorized as legislative action. Article I of the Constitution mandates that legislative actions be approved by both the House and Senate, and then by the president.
We can see the ruling’s broad impact in the post-Chadha understanding of the National Emergencies Act (NEA). The current state of the NEA is a clear example of how delegated legislative powers have run wild, largely due to shackled congressional oversight.
National Emergencies and Executive Overreach
Enacted in 1976, the National Emergencies Act was meant to give the president fast-acting power, subject to congressional review, in the event of a national emergency. In an emergency, it is more efficient to consolidate certain powers than to have them run the traditional and time-consuming bureaucratic and legislative gauntlets. Under the pre-Chadha understanding of the law, Congress could end emergencies via legislative veto, meaning either chamber of Congress could pass a joint resolution — which was not subject to a presidential veto — to end an emergency.
Now, as a result of the decision in Chadha, Congress has little ability to act as a check on expanding executive power. A national emergency now ends in one of three ways: the president ends it; the president does not renew the emergency; or Congress passes a joint resolution, submits it to the president, and the president approves it. If the president vetoes the resolution, the only way Congress can override that veto is by a two-thirds majority vote in each chamber, a task that is virtually impossible in today’s polarized partisan climate.
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Declaring a national emergency, under current law, grants the president an array of extraordinary powers with little opportunity for meaningful congressional oversight. In other words, the president has the ultimate power to declare an emergency, expand the authority of the executive, and — barring a veto-proof majority in Congress — act as the only authority to remove that emergency. It should come as no surprise, then, that there are over two dozen
national emergencies in effect in the United States today, with the longest-running declared in 1979. Most recently, President Joe Biden has employed this power as a way to manage foreign relations with Russia.
The current state of the National Emergencies Act is a perfect encapsulation of the existing confusion and concern around virtually unregulated executive power. Because Congress hasn’t yet come up with an alternative means of effectively weighing in when the executive uses these extraordinary delegated authorities, it has struggled to exert its constitutional prerogatives — even when there is a bipartisan majority ready to act. For example, in March 2019, the Senate voted on a bipartisan basis to end then-President Donald Trump’s controversial emergency declaration on the U.S.-Mexico border. However, this vote failed to override the president’s first veto, and the emergency remained in effect throughout his term and ended in 2021.
Reforms like those in the National Security Powers Act — a bill that was introduced last month in the Senate — would be strong steps in the right direction. Effective reforms would include a requirement for Congress to give affirmative approval of an emergency, prevent the president from wrongfully using a crisis to expand executive powers, and put an end to permanent emergencies. This would set Congress up to be a primary decision maker concerning national emergencies and the use of emergency powers. These reforms would restore Congress’s oversight power while still permitting the president the flexibility to act assertively in the face of a genuine emergency situation.
Congress should work to reestablish their authority to weigh in on the use of emergency powers through mechanisms within the bounds of the constitutional limits determined by the Supreme Court. The ability to serve as a check on the executive is a vital role. Regaining the power it lost under Chadha puts Congress in a better position to keep the executive accountable.