Coalition Letter Urges Congressional Leadership To Ensure Passage of National Emergencies Act Reform
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The Brennan Center for JusticeCoalition Letter Urges Congressional Leadership To Ensure Passage of National Emergencies Act Reform
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The Brennan Center for JusticeDecember 2, 2022
The Honorable Nancy Pelosi The Honorable Kevin McCarthy
Speaker Minority Leader
U.S. House of Representatives U.S. House of Representatives
The Honorable Charles Schumer The Honorable Mitch McConnell
Majority Leader Minority Leader
U.S. Senate U.S. Senate
Dear Speaker Pelosi, Leader Schumer, Leader McCarthy, and Leader McConnell:
As a diverse group of organizations working to safeguard and strengthen our democratic
institutions, we write to urge you to enact National Emergencies Act (NEA) reform during this
Congress, either as a stand-alone or as part of broader legislation, such as the omnibus
spending bill that is reportedly under consideration.
NEA reform has been considered and advanced in both chambers. In December of 2021, the
House passed the Protecting Our Democracy Act (PODA), which includes a set of provisions
to reform the NEA. These provisions were largely drawn from Sen. Mike Lee’s (R-UT)
ARTICLE ONE Act as reported out of the Senate Homeland Security and Governmental Affairs
Committee (HSGAC) in 2019.
Absent reform, presidential abuse of the NEA is a matter of “when” rather than “if.” The law
gives the president nearly unfettered discretion to declare a national emergency. That
declaration unlocks more than 120 statutory authorities, including emergency powers that a
president could rely on to shut down communications facilities, seize private property, and
control domestic transportation. As originally enacted in 1976, Congress could terminate states
of emergency at any time using a “legislative veto” — a concurrent resolution that did not
require the president’s signature. However, in 1983, the Supreme Court ruled that legislative
vetoes are unconstitutional. Today, to terminate an emergency, Congress must effectively
muster a supermajority to override the president’s veto — a near impossibility in the current
political environment.
The NEA also requires presidents to renew emergency declarations yearly, reflecting
Congress’s belief that states of emergency should not linger any longer than necessary. But
serial renewals by presidents acting unilaterally have become the rule rather than the exception.
Today, 42 emergency declarations are in effect; some have been in place for decades.
The NEA reform provisions shared by PODA and the HSGAC-passed version of the ARTICLE
ONE Act would establish a necessary, meaningful check on the president’s use of emergency
powers, while maintaining flexibility for the president when needed most — in the immediate
aftermath of a crisis. Under these provisions, presidential emergency declarations would expire
after approximately one month (20 legislative days under PODA and 30 calendar days under
the ARTICLE ONE Act) unless approved by Congress, using expedited procedures that would
ensure timely action. If approved, emergency declarations could last up to a year, with
subsequent year-long renewals by the president also requiring expedited congressional
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approval. Existing reporting requirements would be significantly enhanced in order to keep
Congress better informed about how the president uses emergency powers.
To ensure that these reforms would not unduly disrupt existing emergency measures,
emergency declarations that are currently in effect would be allowed to remain in effect until the
end of their current one-year term before Congressional approval would be required.
Furthermore, emergency declarations that rely solely on the International Emergency Economic
Powers Act (IEEPA) — the source of authority for multiple foreign economic sanctions regimes,
including those currently levied against Russia — would be exempted.
There is extraordinarily broad bipartisan support for this set of reforms. The ARTICLE ONE
Act, which was introduced by Senator Mike Lee (R-UT) and had 18 Republican cosponsors,
passed out of HSGAC on an 11-2 vote with every Democratic member voting in favor. Six
Democrats and eight Republicans joined a letter urging Senate leadership to hold a floor vote
on the bill. The core reforms in the ARTICLE ONE Act were then incorporated into two major
Democratic reform packages, PODA and the Congressional Power of the Purse Act. They
also appear in the bipartisan National Security Powers Act in the Senate and National
Security Reforms and Accountability Act in the House. In all, 30 Senate Democrats and 20
Senate Republicans have cosponsored legislation that includes NEA reform. In the House,
an amendment to this year’s NDAA that would have implemented PODA’s NEA reform
provisions was sponsored by Representatives Peter DeFazio (D-OR), Chip Roy (R-TX),
Adam Schiff (D-CA), Peter Meijer (R-MI), Steve Cohen (D-TN), Beth Van Duyne (R-TX), and
Veronica Escobar (D-TX).
In short, Congress has the opportunity to advance the most significant recalibration of the
balance of power between the president and Congress in four decades, and to do so in a
bipartisan manner. The undersigned organizations would strongly support either the NEA
reform provisions of PODA, as included in the DeFazio/Roy amendment to the House NDAA,
or the HSGAC-passed version of the ARTICLE ONE Act, versions of which were
incorporated into amendments to the Senate NDAA filed by Sens. Mike Lee (R-UT) (SA 6013
to SA 5499 to H.R. 7900) and Richard Blumenthal (D-CT). The shared reforms in these
amendments would significantly rein in the potential for presidential abuse of emergency
powers. We urge you to include them in the omnibus or otherwise ensure their passage in
this Congress.
Sincerely,
American Civil Liberties Union Project On Government
Brennan Center for Justice at NYU School Oversight
of Law Protect Democracy
Citizens for Responsibility and Ethics in Public Citizen
Washington (CREW) R Street Institute
Common Cause Stand Up America
Due Process Institute Taxpayers for Common Sense
FreedomWorks Taxpayers Protection Alliance
National Taxpayers Union TechFreedom
Niskanen Center Third Way
Win Without War
