Congress just took a big step toward curbing unchecked executive power

Late last week, to limited fanfare, lawmakers on Capitol Hill took a meaningful step toward curbing unchecked executive power. A bipartisan group of senators and House members came together to introduce the ARTICLE ONE Act, a bill to reform the National Emergencies Act (NEA) and establish a necessary and meaningful check on the presidential use of emergency powers.

Why is this under-the-radar effort so important?

This legislation targets one of the most concerning vulnerabilities in current law that affords presidents a range of virtually unchecked powers at the stroke of a pen. 

Under the NEA, the president can unlock enhanced authorities contained in more than 130 provisions of law, including shutting down communications facilities, controlling domestic transportation, and seizing Americans’ private property — simply by declaring a national emergency.

Congress knew these powers were ripe for abuse, so when the NEA was passed in 1976, the law explicitly included a check on executive abuse of this authority, allowing Congress to terminate a declaration through a concurrent resolution, which didn’t require the president’s signature. But in 1983 the Supreme Court declared such “legislative vetoes” unconstitutional. As a result, emergency declarations effectively require a veto-proof supermajority in Congress to be overturned, making presidential emergency powers today far broader than Congress originally intended.

In the ensuing decades, presidents of both parties have taken advantage of this gap in the law. In just the last few years, President Trump declared a national emergency at the southern border to override congressional refusal to fund a border wall, and President Biden relied on emergency powers in an attempt to bootstrap the longstanding issue of escalating student loan debt to the COVID-19 pandemic.  

The ARTICLE ONE Act finally fixes this gap with a simple flip. Instead of a legislative veto, it would require any national emergency declared by a president to expire after 30 days unless a majority of both houses of Congress have approved it, using expedited procedures that would prohibit filibusters, allow any member to force a vote, and ensure timely action.  

In doing so, the legislation would put an end to the era of unrestrained emergency declarations, reestablishing a necessary, meaningful check on the president’s use of emergency powers while maintaining flexibility for the president when needed most — in the immediate aftermath of a sudden crisis. 

This legislation demonstrates the significant bipartisan momentum that has been growing for years on NEA reform, with wide support coalescing both on and off Capitol Hill.

The effort to reform national emergencies has attracted an unusually wide degree of bipartisan support. In the Senate, the ARTICLE ONE Act is led by Senators Mike Lee (R-UT) and Richard Blumenthal (D-CT) and in the House by Representatives Chip Roy (R-TX) and Steve Cohen (D-TN). In past years, NEA reform legislation has attracted support from members of the Progressive, Problem Solvers, and Freedom Caucuses in the House and senators ranging from Bernie Sanders (I-VT) to Ted Cruz (R-TX). Rarely does a substantive reform proposal enjoy such consensus in Congress.

Importantly, past Congresses have taken concrete steps to advance NEA reform legislation. In 2019, the Republican-led Senate Homeland Security and Governmental Affairs Committee reported out of committee an earlier version of the ARTICLE ONE Act on an 11-2 bipartisan vote. In 2021, a Democratic-led House passed a version of NEA reform as a part of the Protecting Our Democracy Act. To date, the topic has been subject to three House committee hearings led by two different parties, the most recent of which took place just last month, when Representatives Scott Perry (PA-10) and Dina Titus (NV-01) held a bipartisan subcommittee hearing on the issue.

NEA reform has also attracted the support of an ideologically diverse coalition of advocacy groups. This year, the ARTICLE ONE Act is endorsed by the American Civil Liberties Union, Brennan Center, Due Process Institute, FreedomWorks, National Taxpayers Union, Niskanen Center, Project on Government Oversight, Protect Democracy, Public Citizen, R Street Institute, Rainey Center, Taxpayers for Common Sense, Taxpayer Protection Alliance, TechFreedom, and Third Way.

This is the first time congressional backers of NEA reform have coordinated their efforts behind a single focused bipartisan, bicameral bill. 

While this is not the first time this bill or other NEA reform legislation has been introduced, often such proposals were packaged into larger bills that addressed broad reforms to presidential and war powers and faced a more difficult road to becoming law. This year’s ARTICLE ONE Act is the first time lawmakers have coordinated from the start to introduce a single bipartisan, bicameral agreement narrowly focused on reforming the NEA. Getting agreement on a single bill not only demonstrates consensus on the proposed reforms but also sets lawmakers up for a more streamlined consideration of the bill and fewer steps to resolve differences in legislative text between the relevant committees and houses of Congress.

In a narrowly-divided Congress during a presidential election cycle, only measures with broad bipartisan consensus stand a chance of advancement, a dynamic made all the more true when addressing challenging issues implicating the separation of powers and limits to executive authority. 

The ARTICLE ONE Act is the rare bill that passes that difficult test. After years of work by the bill’s sponsors and the advocacy community, Congress may finally close the vulnerability posed by unchecked emergency powers.