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Analysis

The Sweeping Presidential Powers Allowed by National Emergencies

There are no checks on when a president can declare an emergency and invoke sweeping powers. Congress can and should pass reforms to change that.

Collage of police in riot gear, a political figure on a podium, and the U.S. Capitol.

(Illustration: Ren Velez / POGO; Photos: Getty Images)

Our nation was founded on the idea of separation of powers, a series of checks and balances designed so our government would function to serve the people, rather than enrich or empower its leaders. Since then, however, there are powers that Congress has yielded to the executive — or powers the executive has simply taken — that threaten the balance between our branches of government. Among the most concerning of these authorities are those powers that allow a president to engage in conduct that the law or Constitution would otherwise prohibit, by declaring an emergency or other exigent circumstance. Such declarations take place with little to no consent or check by Congress or the courts.

By declaring a national emergency, the president can access more than 130 extraordinary powers, including taking control of industrial production, closing communication facilities, and assigning military forces overseas. One of the most worrisome of these emergency powers is the Insurrection Act, which affords the president far too much discretion to turn the military on the domestic population of the United States. The Constitution explicitly provides the Congress, not the president, with the power of the purse and control of military authorities. The breadth of these emergency powers is extraordinary, and so it is essential that Congress act to reassert its power as a check on the president.

Presidents of both parties have been accused of abusing their emergency powers to contravene Congress’ power of the purse. During his term, President Joe Biden attempted to use a 2003 law granting the president emergency powers to cancel student loan debt, a move struck down by the Supreme Court. In 2019, after Congress opted not to fund a wall along the southern border, President Donald Trump declared a national emergency to divert funds for the project.

Emergency powers allow a president to circumvent Congress on more than just funding. The drafters of the Constitution sought to place control of the military and militia regarding foreign and domestic affairs in the hands of Congress, not the president. The Bill of Rights then set out additional limitations on the government’s power to use the military against civilians. Almost 100 years after the ratification of the Constitution, Congress adopted the Posse Comitatus Act, which, in its current form, creates criminal and civil penalties for use of the armed services “as a posse comitatus or otherwise [to] execute the laws.”

But the Insurrection Act — one of the most dangerous of all emergency powers — is chief among these exceptions. Dating back to the late 1700s, the law now contains vague, ill-defined terms and offers wide latitude to the president to use the military and national guard as domestic law enforcement. While the earliest versions of the law included important safeguards, it now contains no role for Congress (or the courts) to serve as a check on a president’s invocation of the Act. 

[The Insurrection Act] now contains no role for Congress (or the courts) to serve as a check on a president’s invocation of the Act.

In short, the Insurrection Act is ripe for abuse, a fact that has not gone unnoticed by those interested in using physical force to suppress dissent or stay in power. During Trump’s first administration, supporters and advisors called on the president to deploy the military within the U.S., first in the summer of 2020 to suppress protest and again in the fall to remain in office following Biden’s election. 

In 1976, Congress passed the National Emergencies Act (NEA), a law intended to limit emergency powers. However, the law did nothing to address the Insurrection Act. And even its limited provisions have largely not worked as intended. The law calls for assessing national emergencies every six months so a declaration cannot continue indefinitely, but instead Congress has only met a handful of times to consider ending an emergency declaration. Since passage of the NEA, Congress has only successfully ended one national emergency, and successive administrations routinely renew emergency declarations without any congressional oversight. Moreover, a veto-proof majority is needed by Congress to end an emergency, so even if a majority of members vote to end an emergency, it is insufficient. 

It’s clear that more must be done. It is vital that Congress take back the control that the framers of the Constitution purposefully vested in it to create meaningful limits and safeguards on presidential power.

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