Congress has before it a unique opportunity: it can recalibrate the balance of power between the president and Congress through a bipartisan manner that places no burden on the national budget, and has the potential to save $500,000

To do so, Congress must simply reintroduce and pass the National Emergencies Act Reform Legislation that was identified as the ARTICLE ONE Act (H.R. 3988) and the REPUBLIC Act (S. 4373) in the prior Congress. This proposed legislation responds to long-standing, bipartisan concerns about a president’s ability to govern by emergency declaration and executive order. In its current form, the National Emergencies Act (NEA) enables the president to declare emergencies on his own initiative, with nothing more than a signature on an executive order. These emergencies can be infinitely renewed.

Under the proposed legislation, an emergency declaration would have a maximum lifespan of 30 days, without affirmative Congressional approval. If approved by Congress, emergency declarations would last up to one year before requiring renewal with another vote in the House and Senate. During this time, the president would be required to provide detailed reporting on the emergency and the administration’s responses.

These National Emergencies Act Reform Legislation bills have previously made their way through committees. The House Transportation and Infrastructure Committee passed the ARTICLE ONE Act (H.R. 3988) unanimously, and it was also approved by the Committee on Foreign Affairs, and the Committee on Rules. The Senate Homeland Security and Governmental Affairs Committee passed the REPUBLIC Act by a vote of 13-1.

The only reason that these well studied and broadly supported bills are not law is because Congress never had the opportunity to vote on them: they were first put on the calendar for vote on December 19, 2024 – the final day of the prior Congress. With reintroduction, these bills have a great chance of becoming law and, thereby, reaffirming the foundations of this country’s governing institutions.

A key tenet of American democracy is rule by the consent of the governed. In the U.S., the Congress is where the voices of the people are represented. Regardless of one’s views on current politics, these National Emergencies Act Reform Legislation bills ensure that Congress and, thereby, “we the people” are not removed from the legislative process. If declared emergencies truly exist and the people would consent to their use to justify governmental action, then Congress would no doubt approve. There is no risk in requiring that an emergency declaration last only 30 days unless formally approved by Congress.

The power to affirm declarations of emergency, to study these emergencies to ensure the most efficient resolution to them, and the ability to budget solutions to these emergencies must be returned to Congress.

For decades, Americans have been rightfully concerned about every president’s ability to govern by emergency declaration and executive order. Even after 9/11, when President Bush declared emergency powers, there was an outcry that such use of emergency powers could enable a president to rule by emergency declaration and executive order, to the detriment of civil liberties. Those concerned also argued that 9/11 was an obvious emergency, and Congress should have had the opportunity to sit together to declare it as such. This involvement would have allowed “we the people” to influence the remedy of that emergency.

Despite these decades of concern, the power to declare an emergency is presently unchecked and enables the president to displace important citizen rights. Simply by declaring an emergency, a president obtains the power to “take over domestic communications, seize Americans’ bank accounts, and deploy U.S. troops.”

Regardless of which side of the aisle one prefers, this broad presidential power cannot have been what was intended in the Constitution or in the Bill of Rights. Indeed, had the Constitution or the Bill of Rights intended unchecked king-like powers to be wielded by the Executive, it would not have vested individuals with the rights to liberty and freedom of speech (domestic communications) or the right to property (bank accounts), or Congress with the right to declare war (deploy U.S. troops).

While the Senate recognized that most uses of emergency powers have been non-controversial, they noted that some uses were cause for alarm.

In 2019, President Trump declared an emergency at the southern border in order to reallocate funds, originally authorized for construction of new military projects, to build the border wall. Congress had previously declined to appropriate the funds. The House and Senate later passed a joint resolution to end the border emergency, but President Trump vetoed the resolution and continued efforts to build sections of the wall. Ultimately, the U.S. Court of Appeals for the Ninth Circuit upheld a permanent injunction against the use of emergency powers to fund construction of the border wall.

It was only through great expense, rather than through what could have been an easy and predictable legislative process, that the emergency declaration could be countered.

Likewise, President Biden’s attempted use of emergency powers to fully cancel student loans faced similar rejection. Again, this was an expense that could have been avoided through the proposed legislation.

The proposed legislation “strengthens Congress’s role in checking the president’s use of emergency powers by amending the NEA to require that Congress approve, rather than disapprove, each emergency declaration via a joint resolution. The bill permits the president to declare a national emergency, and then gives Congress 30 days to approve the use of emergency powers for up to one year, when it can be subsequently reapproved by Congress. The bill allows expedited parliamentary procedures for Congress to approve emergencies, including provisions that limit debate in the Senate and allow for discharge from committees.”

The proposed National Emergencies Act Reform Legislation would not stop presidents from declaring emergencies. Rather, it would add much needed oversight and enable Congress to support presidential emergency declarations.

This is likely why the National Emergencies Act Reform Legislation enjoyed bipartisan support while it was being reviewed in Congress.

In the House of Representatives, the following members sponsored H.R. 3988: Republicans Chip Roy (R-TX-21), Mike Gallagher (R-WI-8), Paul A. Gosar (R-AZ-9), Scott Perry (R-PA-10), Kevin Kiley (R-CA-3), Andrew Ogles (R-TN-5), Michael Cloud (R-TX-27), Ralph Norman (R-SC-5), Clay Higgins (R-LA-3), Andy Biggs (R-AZ-5), Harriet M. Hageman (R-WY-At Large), Josh Brecheen (R-OK-2), Nancy Mace (R-SC-1), Bob Good (R-VA-5), and Thomas Massie (R-KY-4), and Democrats Steve Cohen (D-TN-9), Dina Titus (D-NV-1), and Eleanor Holmes Norton (D-DC-At Large).

All except for one of these sponsors is currently a member of the House of Representatives (Mike Gallagher).

An identical bill, S.1912, co-sponsored by Senators Mike Lee (R-UT), Richard Blumenthal (D-CT), Mike Braun (R-IN), Mike Crapo (R-ID), James Risch (R-ID), and Christopher Murphy (D-CT) was read twice and referred to the Committee on Homeland Security and Governmental Affairs. All except for one of these sponsors remain in the Senate (Mike Braun).

A related bill, S.4373, was placed on the Senate Legislative Calendar under General Orders, on the final day of the legislative session, December 19, 2024. That text was sponsored by Senators Rand Paul (R-KY) and Gary Peters (D-MI).

In their Report to the Senate, they stated as follows:

S. 4373, the Reforming Emergency Powers to Uphold the Balances and Limitations Inherent in the Constitution (REPUBLIC) Act, would require presidential emergency declarations under the National Emergencies Act to be approved by Congress. The bill also makes reforms to other emergency powers, including requiring due process protections for United States nationals who are the subject of sanctions; prohibiting the use of sanctions to implement tariffs; repealing sections of the Communications Act of 1934; and requiring disclosure of Presidential Emergency Action Documents.

[…]

Presidential emergency powers can be important in true times of need, but they lack sufficient congressional checks to prevent their abuse. […] Congress has also recognized that statutory emergency powers could be misused by a President who seeks to act unilaterally without the consent of Congress. […] The risks of not constraining emergency powers are significant because the emergency powers available to the President under the NEA are potentially sweeping. The Brennan Center for Justice has identified 148 statutory authorities the President can use during an emergency pursuant to the NEA. For example, they include: removing biological or chemical agent testing bans on human subjects; closing borders and expelling foreigners; taking over communications channels; and controlling the domestic transportation network. Additionally, the President uses emergency declarations to implement international sanctions under the International Emergency Economic Powers Act (IEEPA).

At present and without reform, Congress needs a veto-proof majority to end a national emergency, which the president infinitely can renew annually. This approach has proven itself insufficient to safeguard civil liberties, and it risks cutting American voices – exercised through Congress – out of the process.

There is never an ideal or convenient time for government reform. The National Emergencies Act, however, is long overdue for significant changes. It must be amended to align it with the precepts of American democratic institutions. This moment is where the United States, through Congress, can demonstrate the art of nonviolent reform.