Congress may limit a wide range of presidential emergency powers this year

WASHINGTON – Senators from both political parties appeared to agree on limiting the president’s emergency powers at a hearing Wednesday, reaching bipartisan agreement that Congress should take steps this year to overhaul the decades-old law.

The National Emergencies Act, approved in the 94th Congress, gives the president powers he would not otherwise have and was intended to give lawmakers oversight of such emergencies.

Homeland Security and Governmental Affairs Committee Chairman Gary Peters, a Michigan Democrat, said there are “common sense reforms that would strengthen Congress’s role in overseeing these emergency powers.”

Peters said he looks forward to working with Kentucky Republican Sen. Rand Paul, a ranking member of the committee, as the panel “works diligently to make this happen in the coming months.”

“Reforming the Emergencies Act is not about thwarting either party’s political goals,” Peters said. “This is about strengthening our democracy and ensuring that Congress retains responsibility for overseeing the executive branch.”

“A dangerous imbalance”

Paul said the current structure of the 1976 Act, influenced by a Supreme Court ruling in the 1980s, creates a “dangerous imbalance in the constitutional separation of powers.”

“Congress has been complicit and has become an inept branch of the federal government by granting the president so many emergency powers and refusing to regularly vote on ending a national emergency, as required by applicable law,” he said.

Paul said he had hope hearing ushered in “a serious and sustained effort to restore the Constitution, reclaim the power of Congress, and protect the people’s liberties by limiting the vast emergency powers delegated to the president.”

Elizabeth Goitein, senior director of the National Freedom and Security Program at the liberal-leaning Brennan Center for Justice, testified that as of today, there are 43 emergency declarations out of 79 total declarations in force under the National Emergencies Act.

This is particularly concerning, Goitein said, because “an emergency declaration unlocks powers contained in more than 130 statutory provisions, some of which carry enormous potential for abuse.”

One of the emergency powers allows the president to seize or shut down cable or radio service, a move last used during World War II when it affected telephones and telegrams that were absent from many American homes, she added.

“Today it could probably be used to control Internet traffic in the U.S.,” Goitein said. “Other provisions allow the president to freeze Americans’ assets without trial, control domestic transportation, and even suspend a ban on government testing of chemical and biological agents on unwitting people.”

She testified that it would be “irresponsible” for Congress to continue to hope for “presidential self-restraint” to ensure that the executive branch does not overreach with its emergency powers.

Trump’s border wall emergency

Goitein said former President Donald Trump “opened the door to the abuse of statutory emergency powers by declaring a national emergency to secure border wall funding after Congress refused to provide that funding.”

“President (Joe) Biden opened the door a little wider when he invoked emergency powers to cancel student loan debt,” she added. “Again after Congress considered debt relief legislation and did not pass that legislation.”

There are several proposals that would require Congress to approve the president’s emergency declaration within 30 days or it would expire. Goitein said that even if the president obtained congressional approval, he would have to go to lawmakers a year later to renew the emergency declaration.

Gene Healy, senior vice president for policy at the libertarian Cato Institute, testified that “it’s remarkable that we haven’t seen much greater abuses” of the president’s emergency powers under the National Emergencies Act.

Congress should “reset” the operation of emergency powers by “repealing presidential emergency declarations after a few weeks and requiring de facto congressional consent for further extensions,” Healy testified.

Lawmakers should review the emergency powers granted to presidents under the nearly 50-year-old law and take away those that would not be necessary in a true emergency or that “are particularly susceptible to abuse,” he said.

Satya Thallam, a senior fellow at the Foundation for American Innovation and former senior staff member of the panel, stated that “the best solution for any reform is one that is politically neutral on its face and designed to serve exclusively the interests of Congress’ legislative role “towards the president, and not towards any specific political program.”

The Foundation for American Innovation writes on its website that it was founded in 2014 in Silicon Valley as Lincoln Labs. Its mission “is to develop the technologies, talents and ideas that support a better, freer and more abundant future.”

Disruption of the peaceful transfer of power

In response to a question from Georgia Democratic Sen. Jon Ossoff about how the president could disrupt the peaceful transfer of power, Goitein reluctantly testified that she was concerned about the Insurrection Act, which exists outside of the Emergency Act.

“The Insurrection Act is a law that allows the president to deploy federal troops to quell civil unrest or enforce the law in times of emergency,” she said. “It gives the president extremely broad and judicially unreviewable discretion to deploy troops in a way that could certainly be abused.”

Healy said it would be “reasonable” for Congress to “tighten” the power the president exercises under the Insurrection Act.

Paul said he fully supports rewriting the Insurrection Act to avoid potential abuses by presidents.

“The Insurrection Act is a thousand times more powerful and could turn this place into, you know, military rule overnight,” Paul said, adding that he has introduced a bill that would prohibit presidents from sending the military anywhere without explicit congressional approval.

“Our soldiers are great, but they are not trained to uphold the Fourth Amendment like our police are. Even this is imperfect,” Paul said. “But our police know about the Fourth Amendment. They know they have to get warrants. Armies don’t get orders.

Paul said any changes to the Insurrection Act must be “more stringent” than changes to the National Emergencies Act “because you’re talking about deploying troops in our cities.”

Paul also said the committee should take a close look at emergency power provisions, which would allow the president to essentially turn off the Internet during a national emergency, calling it an Internet kill switch.

“You can become a dictator in one day, in one moment, with one executive order,” Paul said.

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