Former President Donald Trump utilized his emergency powers to build a border wall along the U.S.-Mexico border. The construction of a new section of the barrier, as seen from Tijuana, Mexico, continued on January 8, 2019 (Mario Tama/Getty Images).
Senators from both political parties seemed to be in agreement during a hearing on Wednesday regarding the need to limit presidential emergency powers. They reached a bipartisan consensus that Congress should take action this year to revise an old law that has been in place for decades.
The National Emergencies Act, which was approved during the 94th Congress, grants the president additional powers that they would not have otherwise. The purpose of this act was to ensure that lawmakers have oversight over these emergencies.
According to Michigan Democrat and Chairman of the Homeland Security and Governmental Affairs Committee, Gary Peters, there are practical measures that can enhance Congress’ ability to exercise oversight over emergency powers.
Peters expressed his excitement about teaming up with Senator Rand Paul from Kentucky, who is the ranking member on the committee. He emphasized the committee’s commitment to working diligently in the upcoming months to make it all happen.
According to Peters, the intent behind reforming the National Emergencies Act is not to obstruct the policy objectives of any political party. Rather, it is aimed at bolstering our democratic system and ensuring that Congress retains its duty to oversee executive power.
‘Dangerous imbalance’
According to Paul, the existing structure of the 1976 law, influenced by a Supreme Court ruling in the 1980s, poses a risky imbalance in the constitutional separations of powers.
He criticized Congress for its complicity and described it as a powerless branch of the federal government. He pointed out that Congress has granted the president numerous emergency powers and has failed to regularly vote on terminating national emergencies, which is mandated by current law.
Paul expressed his hope that the hearing would serve as a starting point for a genuine and ongoing endeavor to restore the Constitution, regain Congress’ authority, and safeguard the freedoms of the people by reducing the extensive emergency powers granted to the president.
According to Elizabeth Goitein, the senior director of the Liberty and National Security Program at the Brennan Center for Justice, there are currently 43 emergency declarations in effect under the National Emergencies Act. Out of a total of 79 declarations, these active emergencies highlight the ongoing challenges faced by our nation.
According to Goitein, the worrisome aspect of this situation is that an emergency declaration grants access to over 130 statutory provisions, with some of them having the potential for significant abuse.
During World War II, the president had the authority to take control of or shut down wire or radio services. This power was primarily used for telephones and telegrams that were not commonly found in American households at the time.
According to Goitein, the power of the president is such that it can potentially be employed to control internet traffic within the United States. In addition, there are other laws in place that grant the president the authority to freeze American citizens’ assets without any involvement from the judiciary, regulate domestic transportation, and even temporarily lift the ban on government testing of chemical and biological substances on unsuspecting individuals.
During her testimony, she emphasized that it would be irresponsible for Congress to rely solely on the hope of presidential self-restraint to prevent an executive from abusing their emergency powers.
Trump border wall emergency
According to Goitein, Former President Donald Trump unlocked the opportunity for misusing statutory emergency powers when he declared a national emergency in order to obtain funding for the border wall, despite Congress denying such funding.
According to the spokesperson, President Joe Biden expanded the scope of student loan forgiveness by utilizing emergency powers. This decision came after Congress had already deliberated on legislation regarding debt forgiveness but failed to pass it.
Several proposals have been suggested that would mandate the approval of a president’s emergency declaration by Congress within 30 days, failing which it would be terminated. Furthermore, even if a president obtains congressional approval, they would need to seek renewal of the emergency declaration from lawmakers after one year, as stated by Goitein.
According to Gene Healy, a senior vice president for policy at the libertarian Cato Institute, it is surprising that we haven’t witnessed more extensive misuse of presidential emergency powers under the National Emergencies Act.
During the testimony, Healy suggested that Congress should revamp the way emergency powers are handled. He proposed the idea of “resetting” these powers by implementing a time limit on presidential emergency declarations, with the requirement of obtaining authorization from Congress to extend them beyond a few weeks. This would ensure a more balanced and democratic approach to the use of emergency powers.
Lawmakers need to carefully examine the emergency powers that have been granted to presidents under the long-standing law, which has been in effect for nearly 50 years. They should consider removing any powers that may not be necessary during a genuine emergency or that have a high potential for abuse.
According to Satya Thallam, a senior fellow at the Foundation for American Innovation and a former senior staff member for the panel, the ideal reform should be policy neutral and solely focused on serving the interests of Congress’ lawmaking role in relation to the president, without any specific political agenda.
The Foundation for American Innovation, formerly known as Lincoln Labs, was founded in 2014 in Silicon Valley. According to their website, their mission is to cultivate technology, talent, and ideas that contribute to a brighter, more prosperous, and liberated future.
Disruption of peaceful transfer of power
During a Senate hearing, Georgia Democratic Senator Jon Ossoff inquired about the potential ways a president could obstruct a peaceful transfer of power. In her response, Goitein expressed her apprehension regarding the Insurrection Act, which operates independently of the National Emergencies Act.
According to the expert, the Insurrection Act grants the president the authority to deploy federal military troops in order to suppress civil unrest or enforce the law during times of crisis. She emphasized that this law provides the president with extensive and unreviewable discretion when it comes to deploying troops, which could potentially lead to its misuse.
According to Healy, it is advisable for Congress to strengthen the powers held by a president under the Insurrection Act.
Paul expressed his full support for the revision of the Insurrection Act in order to prevent any potential misuse by future presidents.
According to Paul, the Insurrection Act holds immense power and could swiftly transform the nation into a military-controlled state. He emphasized the importance of restricting the president’s authority to deploy the military, proposing a bill that would require explicit approval from Congress for any military action.
According to Paul, our soldiers are undoubtedly exceptional, but they are not specifically trained to comply with the Fourth Amendment. On the other hand, our police forces are well-versed in understanding and adhering to this constitutional amendment. However, Paul acknowledges that even the police system is not flawless in this regard. He emphasizes that the crucial distinction lies in the fact that law enforcement officials are aware of the Fourth Amendment and the requirement to obtain warrants, whereas armies are not bound by such protocols.
According to Paul, any modifications made to the Insurrection Act should be “more stringent” compared to changes made to the National Emergencies Act. He emphasized the significance of this, as it involves deploying troops within our cities.
Paul also emphasized the importance of scrutinizing the emergency power that grants a president the ability to potentially disable the internet in times of national crisis, commonly referred to as the “internet kill switch.”
According to Paul, one has the potential to attain the position of a dictator swiftly, with just a single executive order.
