Article One Act – National Emergencies Act Revision

Finding that the U.S. President can exercise extensive emergency powers that Congress has proven unable to limit once an emergency has been declared, the New York City Bar Association has issued a report urging enactment, with a modification, of the ARTICLE ONE Act sponsored by Senator Mike Lee (R-UT) in order to rebalance the relationship between the Executive and Legislative Branches in the exercise of authority during national emergencies not involving military conflict. The City Bar further urges Congress to review the entire statutory framework for granting the Executive the power to operate under emergencies and other special circumstances in order to limit potential abuse of those powers.

Over the last century, Congress has given the President increasing authority – through over 100 statutes, according to the Brennan Center for Justice – to take action in the case of national emergency not involving military conflict. The current discussion on this topic was triggered when President Trump declared an emergency to justify using funds not allocated for the purpose to build a wall along the country’s southern border. More recently, the President has invoked emergency powers in addressing the coronavirus.

Among the vast emergency powers of the President that the report cites are Section 606 of the Communications Act, which “allows the President, upon proclaiming a national emergency, or a state of public peril or disaster, to close any radio station or ‘device capable of emitting electromagnetic radiations,’ or to ‘authorize the use or control of any radio station or device and/or its apparatus and equipment.’ The President essentially would be able to take control over the country’s communications network. It does not take much to imagine the import and scope of such an action, and the difficulties of ameliorating their ongoing impact once implemented. Other statutes provide for Executive Branch take-overs of transportation systems and would allow major control of the country’s economic system.” The report cites the Brennan Center’s work in describing “how combining various powers granted the President by Congress, both under national emergency declarations and triggered by other occurrences, could lead to the aggrandizing of power by the President, severe restrictions on the rights of Americans and even interference with the electoral process for choosing a President.”

According to the City Bar’s report, “Congress has done little to police the grants of emergency authority it has made.” The National Emergencies Act (NEA) of 1976 was an attempt to set out a procedural framework within which these grants of authority may be exercised, providing that any national emergency declared by the President shall terminate if Congress passes a resolution that is enacted into law. However, even when Congress has voted to end an emergency declaration, as in its attempt to prevent diversion of funds for border wall construction, it has not reached the two-thirds majority to avoid a presidential veto.

The ARTICLE ONE Act, in essence, provides that a presidential declaration of emergency would last 30 days unless a joint resolution of approval is enacted into law. Upon enactment of a resolution affirming an emergency grant of authority, that authority lasts for one year, unless Congress or the President sets an earlier deadline. The President may seek renewal of the declaration which again would be subject to a congressional resolution. 

While the City Bar supports the ARTICLE ONE Act, it is concerned that the International Emergency Economic Powers Act (IEEPA) is excluded from the bill and recommends that this exclusion be deleted (while endorsing the provision of the bill amending IEEPA to prohibit use of its emergency authorities to impose duties or tariff-rate quotas).

As a related matter, the City Bar urges Congress to review all similar statutory grants of Presidential emergency authority to determine whether individual statutes should also be limited.  

The report can be read here: https://bit.ly/2VMEOjW