Have you heard about the newest national emergency?
No, not the COVID-19 pandemic. The most recent national emergency was declared just two weeks ago—when President Joe Biden granted himself emergency powers to freeze the property and assets of individuals and businesses connected to Myanmar’s military, following an attempted coup in the southeast Asian country.
It didn’t make national news. But why would it? It’s just one of 34 currently active national emergencies—each coming with its own special powers that the president can use until he decides to stop. The longest-running was invoked by President Jimmy Carter in response to the Iran hostage crisis (which ended in 1981, though the “emergency” never did). Other emergencies authorized by Presidents Bill Clinton, George W. Bush, Barack Obama, and Donald Trump are still humming along too, many with no obvious end in sight.
Congress can respond to presidential emergency declarations by disapproving of them after the fact, which it occasionally does. For example, Trump’s declaration of a national emergency along America’s southern border as a way to redirect funds to the building of a border wall was blocked by Congress in 2019.
But doing so requires a supermajority of both chambers and, generally, Congress can’t be persuaded to get off its collective duff. That’s why Clinton’s 1997 emergency trade embargo against Sudan—a country that obviously represents a serious threat to U.S. national security even 24 years later, natch—is still active. Obama’s emergency sanctions targeting Moammar Gadhafi are too, even though he’s been dead since 2011.
Congressional inaction and executive power-grabbing are nothing new, of course, but Sens. Rand Paul (R–Ky.) and Ron Wyden (D–Ore.) are once again teaming up to try to force that to change. Under a bill the two senators reintroduced on Friday, all presidential emergency declarations would expire after 72 hours unless Congress votes to allow them to continue.
The Reforming Emergency Powers to Uphold the Balances and Limitations Inherent in the Constitution (REPUBLIC) Act effectively flips Congress’ role from one of a passive bystander to an active participant. Paul and Wyden say that in cases of true national emergencies there should be no problem convening a session of Congress within three days to approve a presidential declaration, and the consideration of a national emergency would get immediate priority.
“Congress cannot allow any White House to declare phony emergencies just to get around the legislative process envisioned by the Constitution,” Wyden said in a statement. The proposal would “reassert Congress’ role as a coequal branch of government, while still allowing a president to address real emergencies,” he said.
The bill would automatically sunset national emergencies after 90 days unless Congress voted again to renew the emergency declaration. The bill would also repeal Section 706 of the Communications Act of 1934—a law written long before cell phones or the internet, but one with language so broad that some legal experts worry it could be effectively used as a “kill switch” for the internet.
Unfortunately, the bill is undermined by the fact that Paul and Wyden propose to exempt some presidential powers, such as those granted by the International Emergency Economic Powers Act (IEEPA), which allows presidents to impose sanctions on foreign officials and businesses deemed a threat to American national security. The powers granted by the IEEPA form the basis of many of the 34 ongoing national emergencies, including the most recent declaration issued by Biden.
Still, the Paul/Wyden bill should be part of a broader debate over the balance of power between Congress and the White House—a debate that is long overdue.
As Reason‘s Peter Suderman highlighted earlier this week, the federal government has been operating in a nonstop crisis mode—sometimes in response to officially declared national emergencies and other times due to its own incompetence—for more than two decades. “These emergencies have become excuses for permanent political power grabs, for restrictions on individual liberties large and small, for mass bureaucratization and mass expansion of government spending, trillions of dollars’ worth of non-solutions to deep-rooted problems,” Suderman wrote. “With every crisis, government grows. And now the crisis is government itself.”
Undoing that permanent state of emergency should be a top priority for anyone concerned about the centralization of power and the executive branch’s unilateral decision-making on everything from who gets bombed to who gets bailed out. Setting some basic limits on how long presidential national emergency declarations can last should be relatively low-hanging fruit.
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