AFP Foundation letter to Senate committee: the president’s emergency powers should be for emergencies only


| May 23, 2024

Empty emergency box with breakable glass. Top view. 3d render

By Thomas Kimbrell and Kevin Schmidt

May 23, 2024 | The Senate Homeland Security and Governmental Affairs Committee (HSGAC) held a hearing yesterday titled “Restoring Congressional Oversight Over Emergency Powers; Exploring Options to Reform the National Emergencies Act.”

AFP Foundation sent a letter to the Committee describing the problematic implications of the president’s effectively unlimited executive powers under the National Emergencies Act (NEA). A national emergency declaration under the NEA gives the president potential access to an estimated 148 statutory powers.

Congress intended for such delegations of authority to the president to be temporary to respond to emergent crises swiftly. However, presidents are increasingly exploiting emergency powers to address long-standing policy failures, impose policy preferences, and circumvent our constitutional system of government.

Congress passed the NEA nearly 50 years ago to establish checks and balances against the president’s emergency powers; however, the law failed to achieve that goal. Under the NEA, presidents have broad discretion to declare an emergency, which only ends upon:

  • a presidential declaration,
  • a year after the declaration, if the president fails to file a renewal in the Federal Register, or
  • a congressional joint resolution terminating the emergency.

Because the president can veto congressional joint resolutions to end emergencies, Congress would likely need a two-thirds majority in each house to end any emergency.

AFP Foundation’s letter states, “The NEA did not go far enough to constrain presidential authority and, as a result, emergency declarations—and the expanded statutory powers they unlock—can persist for decades. This system is ripe for abuse and presidents have proven reluctant to let go of authority on their own.”

The Committee invited expert witnesses from across the ideological spectrum to appear at the hearing. Representatives from the Brennan Center for Justice, Foundation for American Innovation, and Cato Institute testified to the Committee about the need for NEA reforms that establish effective congressional oversight and quell executive overreach.

AFP Foundation’s letter to HSGAC is part of our Emergency Powers Reform project, which focuses on ending rampant government abuse of “emergency powers” that too often provide a false justification for bypassing Congress to implement policies that would never otherwise pass into law. AFP Foundation’s reform principles for the NEA include:

  • New national emergencies sunset after 30 calendar days and again every six months unless Congress approves renewal.
  • Existing national emergencies sunset after six months unless approved by Congress.

The president’s emergency powers are meant to be special tools locked in a glass case. We can see they are there if needed, but they should only be brought out under extraordinary circumstances. The glass has been broken for some time, and presidents from both parties are using these powers like a Swiss army knife to impose their policy preferences and address persisting issues they perceive as problematic. Congress has an opportunity to replace the glass, put the powers back in the case, and restore constitutional order to the government. 

Read the full letter. Learn more about the Emergency Powers Reform project.