The president of the United States has the power to order chemical and biological weapons testing on Americans, authorize dumping toxic chemicals or medical waste into the ocean, seize private property from noncitizens and shut down the internet.
That’s because dozens of national emergency powers are on the books that expand the president’s authority to do all this, and much more, without an act of Congress.
A growing discomfort in Washington about this reality is driving an effort to reform the use of national emergency declarations before the November presidential election.
“National emergencies are in a sweet spot of institutional reform,” said Soren Dayton, the director of governance at the Niskanen Center and a former Republican consultant. “Both parties expect that whoever gets elected will abuse national emergency powers because both candidates already have. … And the uncertainty about the presidential election result means both parties have an incentive to stop the other team.”
The Senate Homeland Security committee is expected to hold a hearing this month, according to people familiar with the matter. In addition, a House committee is considering a possible markup on a bipartisan reform proposal later this summer, those people say.
Presidents have grown increasingly bold in using emergency declarations to push policy — a move activists urge as one of the few things they can pressure a sympathetic president to do, particularly under a divided Congress.
Joe Biden used a combination of the COVID-19 emergency and an obscure post-Sept. 11 law to forgive hundreds of billions in student loans — a move that the Supreme Court later struck down. He has changed tactics, trying to draft a federal rule instead — a long and cumbersome process.
Environmental advocates are currently pressuring Biden to declare an emergency on climate change, which the White House is considering, according to a Bloomberg report last month. And more than 80 Democratic lawmakers urged the president in 2022 to declare a public health emergency on abortion access after the Supreme Court overturned Roe v. Wade.
It’s not just Biden. Donald Trump in 2019 found a way to redirect Pentagon funding to build his long-promised border wall using presidential emergency powers after repeatedly failing to win approval for his project from Congress.
There are 43 active national emergencies, with the oldest dating back to the Jimmy Carter years, and only once has Congress ever successfully voted to end one: the COVID emergency that the Biden administration was planning to end anyway. Critics of the system of national emergencies say the tool, meant to give presidents flexibility to respond quickly in a crisis, is instead becoming a way to run around Capitol Hill’s dysfunction — and in the wrong hands, could be used to gut environmental regulations, shut down critical infrastructure, quell protests, strip Americans of their rights and even claim unchecked authoritarian powers.
A cross-ideological group of civil society groups is pushing Congress to act on a Republican-authored proposal called the ARTICLE ONE Act. The proposal, authored by Texas Republican Rep. Chip Roy in the House and Utah Republican Sen. Mike Lee in the Senate, would limit presidential invocation of emergency powers to 30 days. Congress could extend the declaration with majority votes in both Houses. Democrats Rep. Steve Cohen and Sen. Richard Blumenthal are both co-sponsors.
“This kind of lawmaking-by-proclamation runs directly counter to the vision of our Founders and undermines the safeguards protecting our freedom,” said Lee in a statement last year when he introduced the bill. “It’s high time that Congress reclaimed its legislative power and restored constitutional balance to our Republic.”
The Senate Committee on Homeland Security & Governmental Affairs is planning a hearing on the issue, tentatively scheduled for May 22. The Transportation & Infrastructure Committee — which has jurisdiction in the House — could mark up the bill next month.
A spokeswoman for Democratic Michigan Sen. Gary Peters, who chairs the Homeland Security panel, did not comment. A spokesman for the Transportation panel said it “has a history of working on bipartisan FEMA reforms” and that action on some emergency-related bills is possible this summer, but declined to offer details.
The White House did not respond to a request for comment.
Many of the active emergencies are used to implement sanctions to punish the Russian government for the invasion of Ukraine, individuals and groups supporting Hamas in the West Bank, and numerous other global crises.
But they could also be used at home. The same sanctions authority used to punish terrorists or Russian oligarchs could be turned on American citizens or corporations by government decree — a power the government actually briefly invoked after 9/11 against domestic Muslim charities and a naturalized U.S. citizen.
Congress originally had much more of a say in whether to proclaim national emergencies, but a 1983 Supreme Court case stripped it of that power. Today, if Congress wants to end an emergency, it must pass a law that is signed by the president.
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But the push for reform could run smack into the politics of the 2024 election, where Biden is hoping to shore up support from younger voters and progressive Democratic activists. And one of their key priorities is a strong statement from Biden on climate change.
“The way for us to most effectively tackle climate change goes through Congress,” said Stevie O’Hanlon, communications director for the youth-oriented Sunrise Movement. “However, right now, Congress — particularly the Republicans in the House — are not going to stand up to the oil and gas industry.”
“Joe Biden has the power to save lives this summer and for years to come,” O’Hanlon said. “We think he should use that power to protect our generation, our future and our communities.”
But to Liza Goitein, senior director of the Brennan Center for Justice’s Liberty & National Security Program, the system of emergency powers should not be for these sort of policy stalemates.
Climate change is “the biggest crisis that our planet has ever faced,” said Goitein, who supports national emergency reform proposals. “That doesn’t mean that emergency powers are the right way to address it. An emergency is unplanned and unforeseen. Emergency powers are not there to provide long-term solutions to long-term problems.”
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Byron Tau is a reporter at NOTUS.
This story was updated to clarify the distinction between emergency declarations and emergency powers.