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National Emergencies Act leaves Congress lacking

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The decade of the 1970s was fertile ground for congressional resurgence in the wake of Vietnam, Watergate and what historian Arthur M. Schlesinger, Jr., in 1973, dubbed "the imperial presidency" (only after he had left the employ of presidents John F. Kennedy and Lyndon B. Johnson, and President Richard M. Nixon was on the throne).

Laws aimed at reining-in the musclebound executive proliferated like wild flowers in the spring.  These included the War Powers Resolution, the Congressional Budget Act, campaign finance reform, and the intelligence oversight act of 1980 (on the heels of the Senate and House creating intelligence committees in 1976 and 1977).

Less noticed in this surge of congressional body-rebuilding was the National Emergencies Act of 1976 that rescinded four existing national emergencies dating back to the depression, repealed seven statutes containing obsolete emergency powers, and gave Congress a role in reviewing and potentially terminating future national emergencies declared by a president.   

The concept was simple enough.  If a president declared a national emergency, Congress would have roughly 30-calendar days in which to terminate it by adopting a concurrent resolution in each house which is not subject to presidential signature or veto. A resolution terminating an emergency would be put on a fast-track for consideration: the committee to which it is referred is required to report it within 15 calendar days; if not, the resolution could be discharged and brought to the floor for debate and a final vote within three days (meaning filibusters could not be used in the Senate to block a vote).  

Because a simple majority of both houses could easily terminate an emergency if Congress thought the power was being misused or abused by a president, Congress did not bother to impose any conditions or definitions on what constituted a national emergency.

That simple process came to a screeching halt in 1983 when the Supreme Court ruled in INS v. Chadha that one- and two-house vetoes were unconstitutional if they had the effect of altering any rights outside the Congress. Put another way, any attempt by Congress to change existing law, such as reversing a presidential action authorized by law, was in itself a lawmaking activity that required submission to the president for approval or veto. 

That not only put the National Emergencies Act in jeopardy, but scores of other acts containing one- or two-house disapproval mechanisms. The result was a governmentwide review and identification of all the laws that required alteration due to the Chadha decision. In 1985 Congress amended the National Emergencies Act through a provision in the annual defense authorization bill to make it Chadha-compliant by requiring a joint resolution to terminate any national emergency designation, subject to presidential signature or veto.

Although Congress never invoked its emergency termination powers either before or after the Chadha change in the law, all that changed when President Donald J. Trump, on Feb. 15, declared that a national emergency exists on our southern border, and used his declaration to siphon money from previously appropriated defense funds to build the border wall. 

A resolution to terminate the president's declared emergency (H.J. Res. 46) was promptly introduced in the House on Feb. 22 by Rep. Joaquin Castro (D-Texas), along with 233 co-sponsors. It was referred to the House Committee on Transportation and Infrastructure.  On Feb. 25, the House Rules Committee met and granted a special rule that effectively discharged the joint resolution from committee and brought it to the floor under a closed amendment process (H. Res. 144), subject to one-hour of debate. 

The special rule was adopted Feb. 26 on a party-line vote and the joint resolution subsequently passed, 245-182, with only 13 Republicans voting in favor. The measure was referred to the Armed Services Committee in the Senate on Feb. 27, setting the second 15-day time clock ticking. 

Since President Trump has promised "100 percent" to veto the measure if it reaches his desk, and since there is not a two-thirds majority in both houses to override the veto, the ball will literally be in another court, namely, third branch courts, where other players on the ground have already filed suits against the emergency designation. 

Whether the president will be barred from his wall-building enterprise by a judicial injunction, pending resolution of the court challenges, remains to be seen. But one can probably wager that in the meantime the Democratic-controlled House will be working on an amendment to the National Emergencies Act that better defines and confines the triggering of future emergencies. 

Don Wolfensberger is a fellow at the Woodrow Wilson Center and Bipartisan Policy Center, author of "Changing Cultures in Congress: From Fair Play to Power Plays," and former staff director of the House Rules Committee.  The views expressed are solely his own.

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