Renewed Support for the ARTICLE ONE Act, Addressing the President’s Power Under the National Emergencies Act

Hon. Charles E. Schumer
Majority Leader
United States Senate
322 Hart Senate Office Building
Washington, DC 20510

Hon. Nancy Pelosi
Speaker
United States House of Representatives
1236 Longworth House Office Building
Washington, DC 20515

Hon. Mitch McConnell
Minority Leader
United States Senate
317 Russell Senate Office Building
Washington, DC 20510

Hon. Kevin McCarthy
Minority Leader
United States House of Representatives
2468 Rayburn Office Building
Washington, DC 20515

Re:      Support for the ARTICLE ONE Act 

Dear Majority Leader Schumer, Minority Leader McConnell, Speaker Pelosi and Minority Leader McCarthy:

As you know, both houses of Congress are now considering legislation that would address the President’s power, under the National Emergencies Act, to declare a national emergency.  One such proposal, the ARTICLE ONE Act, has been introduced in the Senate and incorporated into proposed legislation titled the National Security Powers Act (S.2391), sponsored by Senators Murphy, Lee and Sanders.  In the House, a similar provision has been included in the Protecting Our Democracy Act (H.R. 5314), with sponsorship including nine committee chairs.[1]

This Association issued a report supporting the ARTICLE ONE Act last year, a copy of which is attached.[2]  We write now to reiterate our support for that proposal.  Over the last century, Congress has passed over 100 laws that grant the President the power to declare a national emergency and exercise a broad range of powers. Many of these grants are still active. Congress has the authority to terminate the President’s exercise of emergency powers but only through a joint resolution, which is treated as a law requiring either the President’s approval or congressional override of a presidential veto.  As a practical matter, this has meant that presidential declarations of emergency powers remain in effect for many years after the emergency giving rise to the declaration has ended.  We believe this is inconsistent with the balance of powers contemplated by the Constitution and provides unwise potential for abuse by a President intent on avoiding otherwise required congressional authorization for Executive Branch actions.

Essentially, the ARTICLE ONE Act reverses the presumption of continuing and the burden of ending a presidentially declared emergency.  Instead of an emergency continuing in effect until it is terminated by joint resolution enacted into law, any authority the President invokes during an emergency would terminate after 30 days unless a joint resolution of continuing approval is enacted into law.  If Congress does not pass such a resolution, the President may not, during the remainder of the President’s term of office, declare a subsequent national emergency with respect to the same circumstances.  Upon enactment of a resolution affirming an emergency grant of authority, that authority would continue for one year (unless Congress or the President sets an earlier deadline).  The President could seek renewal of the declaration, which again would require a congressional resolution.  In addition, the Act requires the President to make detailed reports to Congress regarding the use of emergency declarations.

We believe the ARTICLE ONE Act would provide an appropriate check on the exercise of the President’s emergency authority.  It would achieve a balance between the Executive and Legislative Branches, providing the Executive with the flexibility to respond to legitimate emergencies but only for a limited time (30 days) unless Congress approves an extension for up to one year.  Granting the President 30 days to exercise emergency authority should allow time for an appropriate response to the emergency.  And, in a clearly recognized emergency, Congress would be able to extend the grant for one year, subject to renewal by the action of the President and Congress.  Congress’s ability to act quickly to deal with the coronavirus crisis is an example of its ability to operate rapidly where there is a consensus that an emergency exists.

With the growing concern that the balance of powers among the branches has tilted excessively toward the Executive Branch with respect to the use of emergency powers and that protracted emergency declarations by a President could further erode both that balance and the public’s confidence in the rule of law, we urge Congress to take this opportunity to revise the National Emergencies Act along the lines set forth above.

Respectfully,

Stephen L. Kass
Chair, Task Force on the Rule of Law

Cc:
Hon. Mike Lee
Hon. Bob Menendez
Hon. Chris Murphy
Hon. Jim Risch
Hon. Bernie Sanders
Hon. Adam Schiff