What are emergency powers?

National emergencies are critical tools for addressing sudden and unforeseen events — often situations that require an immediate, decisive response to address. In our constitutional system, a national emergency declaration allows the president to temporarily use certain authorities that Congress has previously approved. Congress delegated this authority to the president because it sometimes cannot act quickly enough to respond to certain kinds of situations, such as natural disasters and public health emergencies. Upon declaring a national emergency, over 130 special authorities — such as the authority to shut down communications facilities or draw down equipment from national defense stockpiles— are immediately unlocked that enable a president to intervene in ways that are unavailable to them outside of an emergency declaration.

Given these vast executive powers, national emergencies can also be quite dangerous in a democratic system. If they are not subject to checks and accountability, these powers could be used to bypass congressional action or infringe on constitutional rights. Congress knew that delegating these powers to the executive branch came with risk, which is why it passed the National Emergencies Act (NEA) in 1976. The act constrained executive overreach by allowing Congress to terminate a national emergency with a majority vote through a simple concurrent resolution, which did not require the president’s signature. Unfortunately, the Supreme Court declared such “legislative vetoes” unconstitutional in 1983, leaving in its wake a regime that — in the words of one expert — makes emergencies “easy to declare and hard to stop.” 

Since that 1983 decision, both Democratic and Republican administrations have used the NEA to circumvent the presidency’s normal legal constraints in order to achieve policy outcomes that cannot pass through Congress. In recent years, presidents of both parties have taken these efforts to new heights. For example, in 2019, President Trump declared a national emergency at the southern border to override congressional refusal to fund a border wall. And in 2021, President Biden relied on emergency powers to attempt to forgive hundreds of billions in student loans debt during the COVID-19 pandemic.

While these recent abuses are troubling, the potential for more egregious violations of civil rights and liberties under a future authoritarian president are cause for genuine alarm. As the Brennan Center for Justice has documented, the declaration of a national emergency makes available to the president over 130 discrete statutory powers. These include the ability to shut down or control domestic transportation, suspend the Clean Air Act, and even seize Americans’ private property.

A bill to reform emergency powers has bipartisan support 

In recent years, members from both parties have highlighted the executive branch’s increased reliance on emergency powers to achieve policy objectives outside of Congress. To correct this trend, Senators Mike Lee (R-UT) and Richard Blumenthal (D-CT) in the Senate and Representatives Chip Roy (R-TX) and Steve Cohen (D-TN) introduced the bipartisan, bicameral ARTICLE ONE Act to reflect the consensus on the need to reassert congressional authority over emergency declarations. The act would terminate a declaration of national emergency made by the president after 30 days unless a majority of members in both chambers of Congress vote to continue the emergency. Should Congress affirmatively vote to continue, the emergency would continue for one year, after which the president could renew the declaration for additional one-year periods with approval from Congress.

Importantly, the proposal also establishes expedited procedures to avoid the filibuster in the Senate and implements clear reporting requirements for the executive branch to disclose to Congress key details about the ongoing emergency and a comprehensive summary of executive actions taken to address the emergency.

Calling out abuses of emergency powers

Protect Democracy has consistently held both Democratic and Republican administrations accountable for misuses of presidential emergency powers. In 2023, we filed an amicus brief with the Supreme Court in Biden v. Nebraska, which concerned the Biden administration’s use of the COVID-19 pandemic emergency in issuing student debt cancellation. We also filed another amicus brief that same year with the Supreme Court in Arizona v. Mayorkas, which concerned the attempt by a group of Republican states to force the Biden administration to continue using emergency powers to enforce a public health statute known as Title 42. Title 42 was originally invoked to limit entry into the US during the COVID-19 pandemic, and these states wanted it to continue being enforced even after the COVID-19 public health emergency had expired. Similarly, in 2019, when President Trump sidestepped Congress and declared a national emergency in order to attempt to build a southern border wall, we litigated against the Trump administration’s abuses of power in El Paso County v Trump.

Related resources

A Chance for the Courts to Rein In Governing by Emergency

How the ARTICLE ONE Act fixes a glaring gap in emergency powers

An Overview of the ARTICLE ONE Act

Read our coalition letter in support of the ARTICLE ONE Act

Congressional Testimony on National Emergency Reform

Abusing Emergency Powers is a Slide Toward Authoritarianism