During his presidency, President Joe Biden has used emergency powers to advance his political agenda. He relied on President Donald Trump’s earlier COVID-19 emergency declaration to activate a September 11–era law that he claimed gave him the power to forgive student loans. Meanwhile, he is also considering declaring that climate change and the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization are national emergencies that ought to be addressed by means of extraordinary executive powers.
Declarations of this sort are not rare in the world of presidential power. Biden’s predecessors declared national emergencies on a host of prior occasions to address various problems for which they lacked specific congressional authorization. Donald Trump, for example, declared that a national emergency existed to respond to the influx of people seeking to enter the nation across our border with Mexico. He declared another one to deal with the COVID-19 pandemic. Barack Obama relied on an emergency declaration issued by George W. Bush after the September 11, 2001, terrorist attacks to skirt congressional spending restrictions on a naval base in Bahrain. Other Presidents have issued similar edicts. Some of them have had enormous effects on Americans’ lives. In perhaps many cases, Presidents gave in to the “Don’t just stand there! Do something!” urge to which we all have succumbed at some time.
The purpose of this Legal Memorandum is not to analyze the legality of those individual declarations. Neither will it join the debates about whether the executive branch should have broad or even unbounded emergency powers as a matter of political theory, reality, or prudence or whether the President has inherent emergency powers under Article II of the Constitution. Our more modest task is to outline the constitutional text and logic that ought to inform Congress as it considers how much power the President should have to act without Congress’s express, specific, and contemporaneous authorization when an emergency arises.
This analysis is both necessary and fitting because for the first time since passage of the National Emergencies Act in 1976, Congress appears to have an appetite to rein in presidential emergency powers. Members of both parties have introduced bills to rein in emergency powers, and Congress passed a bipartisan resolution ending the COVID-19 emergency declaration despite President Biden’s opposition. Although academic debates about the wisdom of Carl Schmitt’s political philosophy are interesting, they are not useful to Congress. That body’s primary concern is crafting problem-solving legislation, and the Constitution’s text and logic ought therefore to be at the forefront of the Members’ minds as they craft legislation, because an unconstitutional law solves nobody’s problem. This paper gives them what they need to know about the relevant constitutional text as well as its logic and offers specific policy recommendations.
It is worth pausing here to clarify what sort of emergency powers we are addressing. We focus on extraordinary powers delegated to the President by Congress upon a declaration of a national emergency. Emergencies, most recently the COVID-19 pandemic, have led to unusual exercises of executive-branch powers like the Centers for Disease Control and Prevention’s eviction moratorium and the Occupational Safety and Health Administration’s vaccination mandate. But these unusual exercises of power were not “extraordinary” in the sense used here because the agencies claimed that these powers were present, though heretofore hidden, in their statutory regimes. In other words, they claimed that these powers were normal powers that they could have exercised even if an emergency had not been declared. The Supreme Court of the United States disagreed, but these are not the emergency powers we are concerned with here. We are concerned with the vast number of statutes that allow the President to redirect funding, suspend laws, and freeze foreign assets, among other things, when he or Congress declares a national emergency. Accordingly, this paper proposes a long-term remedy for the problem of “government by emergency”: a limitation period of no more than two years for any presidentially declared emergency and the repeal of laws granting emergency powers in situations where Congress can respond to an emergency with appropriate speed.
The Constitution in Emergencies
In the forward to Powers of the President During Crisis, Professor Robert Rankin recounted a lesson that a country doctor taught to him when he was a boy, which later informed his understanding of emergency powers:
One day while driving to see a patient who was gravely ill, the doctor opened his medicine chest and pointed to a glass vial containing morphine. “That drug,” he said, “is the most potent medicine in my chest but requires great skill in prescribing. Used properly it relieves pain and suffering. Used improperly it makes animals of men.” Emergency power bears to government the same general relationship of morphine to man. Used properly in a democratic state it never supplants the constitution and the statutes but is restorative in nature. Used improperly it becomes the very essence of tyranny.
What Rankin observed in 1960 the Framers knew in 1787. Justice Robert Jackson’s opinion in Youngstown Sheet & Tube Co. v. Sawyer most famously summarized their thinking: “They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation.” Because of this, there is no emergency-powers clause in the Constitution. This is not an oversight; the Constitution anticipates emergencies and a federal response in at least 10 places (depending on how you count). Three do so explicitly.
- The Suspension Clause allows Congress to suspend the writ of habeas corpus during rebellion, invasion, or when public safety requires it and is the only clause in the Constitution that grants any branch of government extraordinary powers in emergencies.
- The Extraordinary Occasions Clause provides that when the country faces “extraordinary Occasions” (what Justice Joseph Story described as foreign attacks, “unexpected calamities,” insurrections, and “innumerable other important exigencies, arising out of the intercourse and revolutions among nations”), the President may call special sessions of Congress.
- The Guarantee Clause guarantees that the federal government will protect the states from “Invasion” and, if requested by a state, from “domestic Violence.”
Seven other provisions implicitly anticipate emergencies. What is remarkable about them is that they anticipate emergencies of the most serious sort and yet grant no special powers or exceptions from normal governmental procedures.
- The Army Clause requires Congress to reappropriate money for the Army every two years and makes no exception during invasions or rebellions.
- The Militia Clause’s exclusive grant of power to Congress to “provide for calling forth the Militia” leaves the President no ability to do so sua sponte.
- The Declare War Clause gives to Congress alone the power to declare war with no exception for the President to do so during exigencies.
- The Treaty Clause forbids the President from concluding a peace treaty without the approval of two-thirds of the Senate.
- The Third Amendment forbids the government from quartering troops except “in a manner to be prescribed by law” with no exception during war or other emergencies.
- The Succession Clause anticipates simultaneous vacancies of both the Presidential and Vice-Presidential offices and yet makes no succession plan for such a crisis, leaving Congress instead to enact a plan.
- Article II, Section 2 requires Senate confirmation for all high-level executive positions, no matter how important, and makes recess appointments temporary.
The theme woven throughout those provisions is that even during the severest emergencies—like invasion or rebellion—the federal government is generally supposed to react through its normal procedures with Congress taking the lead.
An early national emergency, the Whiskey Rebellion, shows how the process is supposed to work. The Militia Clause gives Congress the power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Under that clause, the Second Congress passed the first of two Militia Acts in 1792, giving the President the power to call the militias when the country faced invasion or whenever a “the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act.” The acts included several limitations in the form of conditions precedent on the President’s power to call the militia. For example, in the case of an insurrection, he was required first to attempt a peaceful solution and to obtain from a Supreme Court Justice or a district judge a certification that the problem could not be handled by local law enforcement. The acts also expired after two years. George Washington relied on and complied with the acts to call out the militia against the Whiskey Rebellion in 1794.
The Whiskey Rebellion is a good example of how the Constitution expects the government to respond to emergencies. First, it gives Congress the ability to enact anticipatory legislation. Second, Congress does so, and the legislation delineates the delegated power. Third, the President uses only as much power as is delegated and only for as long as is necessary to solve the crisis. The Constitution does not abandon its main goal of separating power when the country faces emergencies. Quite the opposite, it doubles down on that principle. Even the Suspension Clause preserves it because Congress itself cannot arrest or jail people. It may suspend the writ, but only the President can give the suspension practical consequences.
There is wisdom in this approach because, to refer again to the eminently quotable Justice Jackson, “[w]e may also suspect that [the Framers] suspected that emergency powers would tend to kindle emergencies.” Thus, Jackson observed, “emergency powers are consistent with a free government only when their control is lodged elsewhere than in the Executive who exercises them.” And that is the constitutional key to good emergency governance: The President should not have the sole power to decide when there is an emergency, what actions he will take to deal with it, and when it will end. Congress must set guiderails at every step.
Two modern uses of emergency powers show how the nation has swerved outside the Constitution’s guidelines. First, in response to a mounting humanitarian and national security crisis caused by massive illegal immigration over the southern border, President Trump requested that Congress appropriate funds to construct a network of barriers along parts of the border. For a time, Congress refused, but it eventually appropriated part of the funds he sought. Rather than accept the compromise, Trump resisted. He concluded that “[t]he current situation at the southern border presents a border security and humanitarian crisis that threatens core national security interests and constitutes a national emergency.” Those magic words activated a statute that allows the President to “undertake military construction projects…not otherwise authorized by law that are necessary to support such use of armed forces” and to pay for them with funds appropriated for almost any other military construction.
That delegation is extraordinarily broad. The President alone gets to decide whether there is a national emergency. The President alone gets to decide what response is necessary. The President alone gets to decide how much money will be redirected and from what other projects. And the President alone gets to decide when the emergency ends. Having delegated all that authority to the President, Congress may take it back only by passing a law that the President may veto.
Second, in partial fulfillment of a campaign promise, President Biden announced that the government would cancel up to $10,000 of federal student loan debt (in some cases up to $20,000) for individuals making less than $125,000 per year. To do this, he relied on an emergency-powers statute called the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, which was enacted in the wake of September 11, 2001, to help military personnel. During a declared national emergency, it gives the Secretary of Education the power to “waive or modify any statutory or regulatory provision” governing federal student loans for specific purposes, including to make sure that recipients of those loans who are affected by the emergency “are not placed in a worse position financially in relation to that financial assistance because of their status as affected individuals.” Biden relied on this statute coupled with Trump’s COVID-19 national emergency declaration to announce his waiver of several hundreds of millions of dollars of student debt, adding between $469 billion and $519 billion to the nation’s tab (according to an analysis by the University of Pennsylvania, Wharton School of Business) without congressional appropriation.
Putting aside whether these two delegations of emergency power violate the law, the major questions doctrine, or the non-delegation doctrine, they contradict the Constitution’s emergency framework. The delegations were broad and vague, invokable by the President at his sole discretion, not subject to meaningful congressional checks, and not subject to any expiration date.
Both invocations—the border wall funding and student loan cancellation—were also arguably pretextual. Each was announced long after the President had recognized the existence of an emergency; each sought to deliver a partisan policy proposal; and each was announced after the President had failed to persuade Congress to deliver that proposal. This pretext shows that emergency powers have become commonplace political tools rather than exceptional remedies for extraordinary problems. When Justice Jackson said that the availability of emergency powers might tend to inspire fake emergency declarations, he thought he was offering a warning; he was, in fact, prophesying.
The Problem of Emergency Rule
Just how much “government by emergency” are we willing to accept? The answer now seems to be “a lot.” Justice Jackson was more right than he knew. In many ways, the federal government operates in a perpetual state of emergency. There are 41 active declared emergencies under the National Emergencies Act alone. The oldest is 43 years old. Nine others are more than 20 years old. Only nine are from this decade.
That probably surprises the average person who presumes, quite reasonably, that the number of statutes granting the President emergency powers is small. After all, there should be few occasions where the President needs to act so quickly that Congress cannot be involved. Unlike some state legislatures, which sit for limited times each or every other year, Congress is in session 11 months of the year; modern-day transportation enables Members to return to Washington, D.C., quickly if there is an urgent reason to legislate; and in the past, Congress has empowered its Members to cast votes electronically (the House did this during the COVID-19 pandemic) rather than on the floor of the House and Senate. The President also possesses the power to convene Congress if it is in recess during an emergency. Once in session, Congress has also proved that it can act with dispatch. Congress took only 14 days after 9/11 to pass the Authorization for the Use of Military Force so that President George W. Bush could use all necessary military force to respond to al-Qaeda’s attacks on the nation. Congress also declared war on Japan only one day after the December 7, 1941, attack on Pearl Harbor. Accordingly, it would seem generally unnecessary for Congress to allow the President to legislate in its absence.
Besides, the ordinary understanding of the term “emergency” is “an unforeseen combination of circumstances or the resulting state that calls for immediate action.” The approach of a known or predictable event can hardly be considered an “emergency.” Some consequences of Congress’s failure to appropriate funds to keep the government up and running might be dire, but no one can reasonably call the end of a fiscal year “unforeseeable.” It is even less of an emergency (if that were possible) when the Constitution itself sets the event’s expiration date, as it does for funding the army. Accordingly, circumstances that recur with regularity or that can be seen far over the horizon cannot linguistically, logically, or reasonably be considered the type of unforeseeable event that the President must be able to handle before Congress can be convened to consider and resolve it.
Yet they often are. Many laws grant the President authority to act in place of Congress when an “emergency” arises. At one time, there were more than 470 federal statutes that vested emergency lawmaking or decision-making power in the President. A Senate committee reviewing those laws even said that the body of emergency-power legislation that Congress had enacted would have allowed Senators and Representatives to spend the entire two-year congressional term (less one day each year) on vacation. “This vast range of powers, taken together, confer enough authority [for the President] to rule the country without reference to normal constitutional processes.”
That is not how the Framers intended the nation to be run. They spent most of their time at the Convention of 1787 deciding what would be the architecture of the new federal government, how the national government could make a “Law” that would restrain private conduct, and what role each branch would play in that process. As far as domestic policy goes, Congress was to be the principal lawmaking body. The President’s primary function was to see to the implementation of the laws that Congress passed.
As Justice Neil Gorsuch recently noted, departing from the Framers’ design and giving to a few executive-branch agents the power to run the country by emergency declaration “does not tend toward sound government.” Their decisions, produced by fear, announced on the fly, and insulated from public debate and criticism, are often bad. Worse, they tend to prevent the American people from participating in their own governance and to weaken civil liberties. The greatest danger yet, however, is that the American people may come to “cheer on those who ask us to disregard our normal lawmaking processes and forfeit our personal freedoms.”
Government by emergency creates another problem: It allows Congress to spend money like a drunken sailor on shore leave. For example, Presidents and Congress can regularly abuse the emergency process to break budgetary limitations. The Budget Control Act of 2011 (BCA) capped defense and non-defense discretionary spending through fiscal year (FY) 2021 but excluded emergency spending from those ceilings. In the five years before enactment of the BCA, emergency funding averaged $22.5 billion per year. In the seven years since passage of the BCA, that average has increased to $29 billion annually. Congress and Presidents Obama and Trump found a loophole in the BCA.
Rather than funding legitimate emergency requirements, the emergency designation has become a means to circumvent the BCA caps. For example, in FY 2018, Congress appropriated more than $125 billion for emergency purposes. Of that, less than $50 billion went toward immediate response and recovery efforts. The Department of Housing and Urban Development’s Community Development Block Grant (CDBG) fund received more than $35 billion (about 10 times its base appropriation). That fund does not address emergencies. Rather, it provides state and local governments with funds to “develop viable urban communities…for low- and moderate-income persons.” While its effectiveness is debatable, the CDBG is not equipped for, nor has it ever been intended to serve, an emergency-response role. This is just one of many examples of how emergency designated spending is being misused to increase other areas of the federal budget.
Even the mechanisms that are designed for disaster relief and response, such as the Federal Emergency Management Agency (FEMA) Disaster Relief Fund, are poorly designed. The Stafford Act, as implemented by FEMA regulation, requires states to prove only that the cost of a disaster is more than $1.77 per capita. That means a small-scale event causing as little as $10 million in damages could be declared a federal disaster in 33 states as well as the District of Columbia and Puerto Rico. With such a declaration comes the guarantee that the federal government will pay for at least 75 percent of the costs of recovery. The result is a perverse incentive for states to call out for easily available federal disaster funds rather than being more prepared themselves.
It is doubtless true that urgent and unforeseen problems will arise that demand immediate action by the federal government—9/11 is a classic example—and sometimes only the President can muster the nation’s resources with the speed necessary to respond to them immediately and effectively. The President therefore needs some flexibility to respond to unforeseen and unforeseeable events. But he does not need the nearly unlimited flexibility that he has now. Insofar as possible, Congress ought to draw a clear line giving the President only precisely as much power as he needs for no longer than he might need it before Congress can convene.
Policies to Adopt and Policies to Avoid
Congress tried to fix this problem once before. In 1976, it passed the National Emergencies Act (NEA) to try to rein in the President’s runaway emergency powers. That law imposed procedural limitations on the President’s use of emergency powers conferred by other statutes, but it did not eliminate many grants of substantive emergency power. That was a mistake. As originally passed, the NEA allowed the President to declare a national emergency and thus activate any of the many secondary laws that vested him with emergency power, but it also required him to comply with certain procedural requirements, such as naming the laws that he intended to invoke and publishing his emergency declaration in the Federal Register.
Congress sought to preserve an oversight role for itself in two parts of the National Emergencies Act. The act allowed Congress to end an emergency declaration by concurrent resolution (a legislative veto) and required each house of Congress to meet and vote on those concurrent resolutions six months after the emergency declaration. Only the first one had any teeth, but in INS v. Chadha, the Supreme Court held that legislative vetoes were unconstitutional, filing those teeth to nubs. In response, Congress amended the NEA to replace concurrent resolutions with joint resolutions that the President could veto. This severely constrained Congress’s ability to procedurally restrain executive emergency powers.
As for the second oversight provision—forcing Congress to vote on the President’s declarations—Congress has avoided that option like the plague. Why? Oversight takes a great deal of prehearing work (at least by staff); it is not “sexy” (unless you can identify corruption or something scandalous done by a President of the opposite party); and it doesn’t “bring home the bacon” to constituents. Congress ignored its oversight role until Trump’s border wall emergency. It therefore is unsurprising that Congress has not exercised that authority since it became law in 1976.
Thus, Congress today finds itself in almost the same position it was in before the NEA’s passage. Presidents continue to have vast emergency powers that allow them to circumvent Congress unless Congress has a veto-proof majority. So where do we go from here?
Policies to Adopt. The Constitution points the way. Recall that even during invasions, occasions of domestic violence, and other “extraordinary Occasions,” the Constitution expects that Congress—not the President —will lead the response even if it is adjourned. The Constitution anticipates a presidential response in only one case—domestic violence in a state—and then only if Congress “cannot be convened.” This suggests that Congress should jealously guard the power to respond to emergencies. This is not to say that it should give the President no such powers, but that Congress should give them to him only if it cannot react with the necessary speed. This will necessarily be a high bar because today’s Congress, which benefits from air travel, mass communication, and, if necessary, remote voting, can act even faster than the Congresses of the past—and those Congresses still managed at times to react speedily. Thus, Congress’s first step should be to reexamine all the laws that give the President emergency powers and to eliminate all but those that Congress believes require a speedier response than it can deliver. In all other situations, Congress should keep the power to respond to an emergency for itself.
If Congress does give the President emergency power, it should set a time limit on it so that the power does not outlast the emergency that spawned it. How long should the time limit be? It might vary depending on the emergency or the powers attendant to it, but in no case should emergency powers last longer than two years. The Army Clause is the reason. That clause requires Congress to reapportion money for the Army every two years. It includes no exceptions, even if a foreign army has invaded. If the solution (an army) to a truly existential crisis (invasion) expires after two years, then no other emergency power needs to last longer.
A few Members of Congress, including Senator Mike Lee (R–UT) and Representative Chip Roy (R–TX), have introduced legislation that helps. For example, the Assuring that Robust, Thorough, and Informed Congressional Leadership Is Exercised Over National Emergencies (ARTICLE ONE) Act would amend the NEA to terminate all emergency declarations and attendant emergency powers automatically after 30 days unless Congress passes a joint resolution approving them. It would also set a one-year deadline on emergencies unless, again, Congress renews them. One shortcoming is that it leaves in place all of the extant emergency powers statutes. Another is that it would permit Congress to extend an emergency indefinitely. Congress has already given the President a blank check and may yet be tempted to give it to him in perpetuity. This temptation can be avoided by borrowing a provision from Senator Chris Murphy’s (D–CT) National Security Powers Act, which states that “under no circumstances may a national emergency declared by the President under section 201(a) continue on or after the date that is five years after the date on which the national emergency was first declared.” If Congress added this line to the ARTICLE ONE Act, changed “five years” to “two years,” and then repealed all of the unnecessary emergency powers laws, it would be well on its way to restoring the Constitution’s approach to emergencies.
Policies to Avoid. Having established what we should do, it is worth noting what we should not do. There are two proposals that we do not support. The Supreme Court need not, first, overrule INS v. Chadha. Although that decision precludes Congress from imposing meaningful procedural restrictions on the President’s emergency powers, that is not a serious problem. Procedural restrictions are second-best solutions to this issue; substantive limitations on presidential power are better. There are three reasons for this.
- Procedural limitations on the use of delegated emergency power do not address the underlying constitutional directive that Congress—not the President—should retain primary responsibility for reacting to emergencies.
- Because of the pendulum dynamic where the President’s party likes his emergency declarations and the party out of power does not, Congress is likely to exercise procedural oversight only when it is controlled by the opposite party. That only reinforces the partisan nature and perception of emergency declarations.
- Congress is very rarely successful at binding future Congresses to carry out oversight functions when emergencies are concerned.
Therefore, overruling Chadha would not help to rein in the use of emergency powers.
It would be as unhelpful for Congress to create a statutory definition of “emergency.” Some commentators have suggested this solution so that the courts can decide whether the President’s declaration is true or pretextual. This cure, however, is worse than the disease. For one thing, the courts are unlikely to play the role it assigns them. Courts are reluctant to second-guess a President’s determination that there is an emergency; they are not experts in foreign policy, terrorist threats, or infectious diseases and are not designed to make quick or well-thought-out decisions based on scant or imperfect information. Courts are also aware of the precedential effects of their decisions and thus know that if they invalidate an apparently fake emergency today, they may limit a future President’s flexibility to address an apparently real emergency tomorrow. They are aware, too, that partisans—who vacillate from hating emergency power to loving it depending on whether the President is a member of their political party—will try to exploit precedent for political gain. For these reasons, courts will likely be unwilling to enforce a statutory definition of “emergency.”
The second problem is definitional: Any definition of emergency will use broad flexible terms so that it does not limit the President’s power to adapt to unforeseen, legitimate crises. No one foresaw Russia’s effort to arm Cuba with missiles carrying nuclear warheads, and no one wants to bind the President’s hands in dealing with a similar emergency today. Therefore, even if the courts would enforce the definition, they would still likely defer to the President’s interpretation. For example, if Congress used Merriam-Webster’s definitions—“an unforeseen combination of circumstances or the resulting state that calls for immediate action” or “an urgent need for assistance or relief”—courts would have to fix concrete meaning to vague language with monumental consequences in the face of a potential crisis. They will likely refuse to do so, and for good reason.
The final problem with a statutory definition of emergency is that it does not cure the fundamental problem that the President should not have the power both to invoke and to wield emergency powers. Justice Jackson was right: This concentration of power is an unwise thing. The Constitution foresaw this danger; we should restore its defenses against it. If we do not, if we permit the government to rule by indefinite emergency edict, we risk leaving ourselves with “a shell of democracy and civil liberties just as hollow.”
Emergency powers, like morphine, can be powerful tools for good. Deployed carefully in response to a crisis, they can reduce harm and help to restore the damage a crisis causes. There is a risk, however, of addiction, which can lead to abuse. Just as abuse of morphine “makes animals of men,” so abuse of emergency powers makes tyrants of governments. Successive Presidents are deep in the throes of this addiction, and successive Congresses have refused to cut off their supply.
Presidents of both parties have abused emergency powers not to preserve or restore the country after a crisis, but to enjoy the high that comes from wielding extraordinary power in service of a political agenda otherwise beyond their reach. It is time for them to get clean. Some of the Presidents’ erstwhile enablers in Congress agree. They should follow the constitutional guidelines laid out here to put the cork back in the bottle so that emergency powers once again have only a salutary effect on the body politic.
GianCarlo Canaparo is Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. Paul J. Larkin is John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Meese Center.