Keeping an Eye on “National Emergencies”

Last month, in the final days of his Administration, President Trump moved to renew the “national emergency” along the US-Mexico border that he had declared in 2019.

“The ongoing border security and humanitarian crisis at the southern border of the United States continues to threaten our national security, including by exacerbating the effect of the pandemic caused by COVID–19,” he told Congress on January 15.

On his first day in office, President Biden terminated that emergency, which he said had been a mistake all along.

“I have determined that the declaration of a national emergency at our southern border was unwarranted. I have also announced that it shall be the policy of my Administration that no more American taxpayer dollars be diverted to construct a border wall, and that I am directing a careful review of all resources appropriated or redirected to that end,” he wrote on February 10.

But President Biden declared a new national emergency arising from the February 1 military coup in Burma. The situation in that country poses an “unusual and extraordinary threat to the national security and foreign policy of the United States,” he said.

Biden also renewed a 2011 declaration of national emergency concerning Libya. “We need to protect against the diversion of assets or other abuse by persons hindering Libyan national reconciliation,” he wrote on February 11.

There are 38 “national emergencies” currently in effect. They typically entail blocking property and restrictions on financial activity of targeted persons. The history and scope of such emergencies were discussed by the Congressional Research Service in a report that was updated this week. See National Emergency Powers, February 16, 2021.

Although climate change is an emerging challenge and threat, it would be a mistake for the President to declare it this kind of a “national emergency,” argued Elizabeth Goitein of the Brennan Center. See “Declaring climate change an ’emergency’ won’t help Biden fight it,” Washington Post, January 29. See also “Why President Biden Should Not Declare a Climate Emergency” by Soren Dayton and Kristy Parker, Just Security, February 10, 2021.

Bill Would Require Congressional Approval of “National Emergencies”

Under current law, the President can declare a national emergency — and exercise extraordinary emergency authorities — but the ensuing state of emergency cannot be terminated by Congress without veto-proof majorities in both houses.

A pending bill known as the ARTICLE ONE Act (S. 764) would invert that scenario so that an emergency declared by the President would automatically expire after 30 days unless and until Congress adopted a resolution to approve the declared emergency.

The bill “reclaims certain emergency authorities that Congress has ceded to the President,” according to a Senate report on the bill that was published this week.

The bill is remarkable both because it is an uncommon congressional initiative to limit presidential authority in this area and because it has significant bipartisan support, including 18 Republican cosponsors in the Senate. It was reported out of the Senate Homeland Security and Governmental Affairs Committee by voice vote on July 24.

As of last month, there were 34 national emergencies in effect, the Senate report said, citing data from the Brennan Center for Justice.

In a significant limitation, the proposed congressional review procedures would not apply to national emergencies that are declared under the provisions of the International Emergency Economic Powers Act (IEEPA), which is used to impose economic sanctions on foreign individuals or governments. All but three of the current national emergencies fall in this category.

“This exclusion is intended to preserve the President’s flexibility in deploying economic sanctions as a national security tool,” the Senate report said.

However, legislators added, “To ensure that a President cannot skirt congressional review by invoking IEEPA along with other emergency authority provisions, the bill specifies that any such declared emergency remains subject to the new framework established by the ARTICLE ONE Act.”

Last month, 15 Senators wrote to Senate Majority Leader McConnell and Minority Leader Schumer asking them to schedule a vote on the bill as soon as possible.

“The ARTICLE ONE Act’s proposition is simple but fundamental: Congress cannot continue to cede its powers to another branch, regardless of who is President or which party holds a majority,” the bipartisan group of senators wrote on October 17.

“This bill would take a pretty giant step toward preventing future abuses of emergency authorities and reclaiming some of the power Congress has delegated away to the president over the past 40 years,” tweeted Liza Goitein of the Brennan Center for Justice. “That’s a big deal.”

The Congressional Budget Office said that it anticipated that Congress would approve most future declarations of national emergencies if the bill were enacted, though there might be fewer of them or their duration might be shorter.

Last week, the President renewed for another year the oldest continuing national emergency, pertaining to Iran, which was declared 40 years ago.

Defending Democracy in Ukraine

Persons who threaten democracy in Ukraine also represent a threat to the United States, according to a 2014 executive order issued by President Obama following Russia’s invasion and seizure of the Crimean region.

In fact, the resulting threat to US national security and foreign policy is so severe as to constitute a “national emergency,” said Executive Order 13660, which remains in effect. Those who engage in “actions or policies that undermine democratic processes or institutions in Ukraine” may have their assets blocked by the United States.

As of 2017, some 600 individuals and entities had been sanctioned — mostly Russian and Ukrainian officials, not Americans.

Several more individuals were designated for sanctions this year under the executive order, according to the latest report to Congress from the Secretary of the Treasury. See Periodic Report on the National Emergency with Respect to Ukraine, September 6, 2019.