In 1976, Congress enacted the National Emergencies Act, which delegates extra powers to the President to address sudden and unforeseen national emergencies without involving Congress. Unfortunately, laws have unintended consequences, and the National Emergencies Act is no exception.
Every 21st-century American President has used the Act to declare national emergencies to enhance their executive power without seeking congressional approval. While presidents view Congress as an obstruction to implementing their political agenda, the unintended consequences of sidelining Congress from participating in the resolution of national emergencies create far worse problems for the nation. Resolving national problems without congressional involvement:
- limits the president’s policy to the remainder of his term of office,
- Likely will require U.S. Supreme Court intervention to resolve the controversies, or
- allows the Supreme Court to leave the conflict unresolved (thus continuing) by ruling it is a political question for the branches to decide, or
- creates such an unresolvable conflict that a president adopts authoritarian powers as the best means of resolution.
President Trump has issued eight emergency declarations in his first 100 days, more than any modern-day president. His emergency declarations include accelerating fossil fuel production and mineral mining, directing military assets to the Southern border, designating cartels as terrorists, duties on illegal drugs and synthetic opioids, sanctions on the International Criminal Court, and reciprocal tariffs to address the U.S. trade deficit. Many of his proclamations, if not all, relate to long-standing problems, not sudden catastrophic events. As such, many proclamations will be declared illegal, and some unconstitutional. Some will survive.
The key point of this concern between the President, Congress, and the courts is that Congress has delegated such massive amounts of emergency powers to presidents that it has damaged its ability to be a check, let alone an active participant, in the nation’s most critical matters. These delegated powers ensure that the courts will determine the outcomes, not the two political branches of government, or worse, the conflict will ignite a constitutional crisis.
The institution of Congress has enacted many emergency laws over the last fifty years that allow presidents to keep the nation in a perpetual emergency. Presidents use these emergency powers well beyond the time limits intended by Congress. Once the emergency is declared, the President can rule without congressional interference. What is baffling is the complete inability of the two political branches to negotiate a resolution that corrects the extraordinarily poor legislative drafting of the underlying the National Emergencies Act and a U.S. Supreme Court decision that struck from the statute an unconstitutional provision that tipped the power balance dramatically in favor of the Executive. By allowing these mistakes to continue, Congress accepts its irrelevancy and allows some future president to be a dictator, unless checked by the courts.
Before 1976, national emergencies were declared for real emergencies, such as wars, national security threats, banking crises, and the Great Depression. Unfortunately, Congress was so busy with other “important work” that it forgot to terminate delegated presidential powers after the emergencies were over. To address this failure, Congress passed the National Emergencies Act to remedy the situation. The Act repealed the emergency declarations for which the emergencies had passed and set up a procedure intended to give Congress a role in revoking the delegated emergency powers.
Unfortunately, the 1976 Act is a drafting nightmare that a polarized Congress cannot fix, and presidents can aggressively use it to their advantage.
The Act’s primary deficiency is its failure to define the term “National Emergency,” which makes emergency declarations more about a president’s political mindset than the facts underlying the potential harm to the nation. In the original Act, Congress placed a time limit on the President’s emergency powers and required only a majority of Congress to repeal a national emergency. Several years later, the Supreme Court declared, in an immigration case, that a structure that allows Congress a de facto legislative veto was unconstitutional as a violation of the separation of powers. It ruled that for Congress to overrule a presidential power, it must enact a Joint Resolution, which the President must sign or veto. If vetoed, a two-thirds vote of Congress is required to override a presidential veto. Essentially, the automatic renewal of the President’s emergency powers and the inability of Congress to override a veto prevent it from terminating a president’s emergency powers once declared.
The result allows the President to automatically renew the use of emergency powers while making the congressionally imposed time limit ineffective. Since presidents are concerned about keeping their expanded powers, they usually renew emergency declarations, and Congress must live with their actions.
The only requirement to implement an emergency declaration is that the President specify a provision allowing it in one of the 136 laws granting emergency powers on which it can rely. The provision cited does not need to relate to the actions taken to address the emergency. The statute is so broad that the two most accurate organizations counting the number of emergency declarations issued, the Congressional Research Service (“CRS”) and the Brennan Center (“Brennan”) at New York University, have different counts. Both, however, agree that the first National Emergency Act proclamation on the Iran hostage crisis, issued in 1979, has been renewed by every President since Jimmy Carter.
National Emergencies issued by presidents: Ronald Reagan (4 CRS/7 Brennan). George H.W. Bush (4 CRS/5 Brennan), Bill Clinton (15 CRS/15 Brennan); George W. Bush (12 CRS/16 Brennan); Obama (12 CRS/12 Brennan); Trump 45 (12 CRS/13 Brennan); Biden (CRS NA/ 10 Brennan); Trump 47 (CRS NA/8 Brennan to Feb. 6, 2025).
Until the Biden administration, national emergencies involved export controls, prohibiting transactions with foreign countries, freezing foreign assets, weapons of mass destruction, international drug cartels, and cybercrimes.
President Biden’s use of emergency powers during the COVID-19 pandemic greatly expanded the scope of the Act. Biden extended his emergency powers to impose mask and vaccine requirements after the emergency was over, all while keeping the scientific basis for his actions under wraps.
In addition, without Congressional appropriations, President Biden attempted to forgive $600 billion of student loan debt. His asserted authority was the 2003 Higher Education Relief Opportunities for Students Act, which “authorizes” such power to address the financial harm caused by a national emergency, i.e., the COVID-19 pandemic. Biden also mandated that 84 million Americans subject to the Occupational Safety and Health Act obtain a COVID-19 vaccine or submit to weekly testing. Biden even used emergency powers to impose a nationwide eviction moratorium to stem the spread of COVID-19.
At one point, Biden contemplated designating climate change as a national emergency. If he had followed through on this designation, he could have controlled the entire economy by imposing “…sweeping actions to restrain greenhouse gas production—such as banning U.S. crude oil exports, ending offshore drilling, or dramatically increasing the manufacturing of electric vehicles.”
President Trump is extending the use of national emergencies to impose tariffs on Canada, Mexico, China, and every country in the world. By using emergency powers rather than the general tariff laws, Trump bypasses the administrative finding requirements in the Tariff Acts. By declaring all these controversies emergencies, Trump asserts enhanced executive power without congressional approval. These new powers allow Trump to use the military for specific enforcement actions and shift appropriated funds from congressionally authorized activities to activities of concern to the President.
The vast reservoir of laws that a president can choose from to declare an emergency includes the ability to control airports, industrial facilities, any device capable of emitting electromagnetic radiation, and our communications system. The International Emergency Economic Powers Act (“IEEPA“) is the most used authority. It authorizes the President to invoke emergency powers relating to U.S. national security, foreign policy, or the economy, including financial and commercial transactions. Sanctions can be imposed on individuals and countries, including freezing bank accounts and seizing assets. While there is a requirement that the threat be related to an activity in whole or part outside of the U.S., it is easy for a president to assert a foreign connection merely by accusation. Presidents have invoked IEEPA 56 times.
The more controversial aspect of using IEEPA to impose tariffs is that the Constitution places the power to lay and collect tariffs in Congress. While Congress delegates power to a president to address a genuine crisis involving foreign aggression, economic sabotage, or cybersecurity, the IEEPA does not delegate any authority to address tariffs. The Trade Expansion Act and the Trade Act of 1974 have presidential powers to address tariffs.
Trump’s use of the IEEPA to impose worldwide tariffs has ignited a constitutional conflict between the thirteen states and the Executive branch. Led by the state of Oregon, twelve attorneys general filed suit against the Trump administration, alleging the tariffs, without congressional action, are illegal since they impose increased prices (i.e., a $3,800 a year sales tax) on all American families. California has filed a separate lawsuit.
By leaving Congress on the sidelines, the judiciary, rather than the political branches, will likely determine the legality of the tariffs. If the Supreme Court voids the tariffs, significant parts of Trump’s foreign and economic policies will be illegal and unenforceable. If the court rules that the matter is a political question, the tariffs and all their economic and international effects remain without any congressional involvement. By imposing tariffs without congressional involvement, the President opens the door for the Supreme Court to rule in a manner that could disrupt the economic activity of the nation and the world. Moreover, these actions place the Supreme Court in an awkward position, requiring it to determine the foreign and economic policy of the country and, by implication, the world.
Since presidents before and after Trump will need to address national emergencies, and since the Constitution grants Congress the authority to legislate and appropriate funds to address such emergencies, the two political branches of our government must cooperate as fiduciaries owing their duty of loyalty to the nation, not their political fortunes.
A resolution can be as simple as Congress granting the President emergency powers for a specific period, i.e., 90 days. All emergency powers would cease at the end of that time unless reauthorized by Congress. Moreover, Congress must define what constitutes a National Emergency. While presidents might view this approach as conceding their accidentally acquired power back to Congress, it could also be considered as an opportunity to expand presidential power since, with the help of Congress, many of the President’s policies will continue beyond the term of the President declaring the emergency.
While presidents may enjoy exercising power without Congress and believe judges who rule against them are “rogue” judges, it is unquestionable that since the beginning of the Republic, the judiciary has had the power to decide if an act of Congress is Constitutional or if a president’s actions violate the Constitution. If the two political branches do not want the courts to determine the constitutionality of their actions, they should put their egos aside and cooperate in finding the best path for the country.
Short of finding a path forward, Congress can always reclaim its power over national emergencies and tariffs by withholding appropriated funds that support what it believes to be a president’s failure to faithfully execute the laws of the nation. It’s time for Congress and the President to accept the risks of Congress being irrelevant.
