The 1976 statute had flaws before President Trump took office. But his recent emergency declaration gives Congress an incentive to fix it.
Congress is on the verge of formally repudiating a president’s national emergency declaration, a historic first.
Last month, after losing a funding battle with Congress over his desire for a border wall, President Trump made his declaration, insisting that a “national security crisis on our southern border” precipitated his action. The Senate has mustered enough support to pass a joint resolution, introduced and approved in the House last month, calling for the immediate termination of a national emergency that represented an unprecedented end run around Congress’s power of the purse.
Mr. Trump has threatened to veto the resolution if it passes. Nonetheless, such a rejection from Congress would be healthy for the nation’s constitutional order. Among other things, it’d demonstrate that the separation of powers still matters and that some Republican lawmakers — after two years of looking the other way — are willing to stand up to a president with no respect for constitutional boundaries.
At the same time, the need for this legislative reprimand lays bare flaws in the National Emergencies Act, which Congress passed in 1976 to restrain executive power. Before the law, a president could declare a national emergency and unlock formidable powers under an array of statutes, giving him authority, according to a legislative analysis, “to seize property and commodities, organize and control the means of production, call to active duty 2.5 million reservists, assign military forces abroad, seize and control all means of transportation and communication, restrict travel, and institute martial law, and, in many other ways, manage every aspect of the lives of all American citizens.”
the government had used as late as 1972 to justify actions in Vietnam.
Senator Charles McC. Mathias, a Republican from Maryland who was a chief sponsor of the legislation, called President Gerald Ford’s signing of the bill “a historic act of relinquishing powers of the presidency” and envisioned it would be a tool for “restoring constitutional democracy.”
But in the more than 40 years that the National Emergencies Act has been in effect, it’s been subject to few checks and balances. That Congress has never invoked its own authority under the act to rebuke a president until now is a sign of the statute’s weaknesses.
The resolution now before Congress serves mainly to nullify Mr. Trump’s border emergency declaration. But further reforms are called for to protect the nation from future excesses.
For one thing, the National Emergencies Act doesn’t define what an emergency is — a loophole that Mr. Trump took advantage of by declaring that there’s a crisis at the border, contrary to all evidence. Congress could set clearer parameters, allowing a president to declare emergencies only when threats to the national interest are imminent and based on observable facts.
The current law also lets the president extend emergencies for years on end, simply by notifying Congress.
