Bill Would Require Congressional Approval of “National Emergencies”

11.21.19 | 2 min read | Text by Steven Aftergood

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.