A national emergency is defined by the Merriam-Webster Dictionary as “a state of emergency resulting from a danger or threat of danger to a nation from foreign or domestic sources and usually declared to be in existence by governmental authority.”
It should go without saying that a national emergency should represent an actual emergency, something that is serious, unexpected, and perhaps dangerous, requiring immediate action to protect the country. Previous national emergencies have included declarations to block certain transactions with Iran following the taking of American hostages, to prevent the spread of weapons of mass destruction in the early 1990s, and following the 9/11 terrorist attacks.
At least post-Harry Truman, it has been readily understood and agreed that national emergencies should not be declared to circumvent political disputes that a president is losing. But now, we are faced with a president who does not appear to either understand or care about the checks and balances that are fundamental to American democracy and threatens a national emergency to end a dispute that he has not won politically.
It defies logic to consider how a situation that has remained largely unchanged for the entirety of the Trump presidency without an emergency being declared—namely that a dwindling number of people illegally enter the United States through the U.S.-Mexico border each year, many of whom are detained for an extended period of time—only now constitutes an emergency warranting such a declaration.
Like the previous weaponization of the filibuster, are national emergencies now to be considered fair use in the presidential political toolbox? We hope not. But these events convince us it is time for Congress to reconsider the powers it has delegated to the executive branch, especially powers available under a national emergency.
In addition to any implied powers the president may have under the Constitution in times of national emergency, there are more than 130 separate statutes that grant the president extraordinary powers in case of a national emergency. Under these statutes, which remain dormant until invoked, a president may, inter alia, impose martial law, take control of electronic communications, freeze Americans’ bank accounts, deploy federal troops unilaterally and within U.S. borders, militarize public health service, dispose of infectious medical waste in the ocean, or take control of an airport.
The president’s emergency powers may be accessed under the National Emergencies Act of 1976, which merely requires the president to identify a statute under which he is seeking emergency powers, declare a national emergency, which is not defined, and renew the state of emergency annually. Emergency powers are limited under the statute invoked, but the criteria for declaring a national emergency are not. Additionally, although the act provides that Congress can revoke the emergency by voting to do so, that resolution must be presented to the president, who is free to veto it. As such, a national emergency is impossible to remove without the agreement of the president.
There are 28 national emergencies currently in effect, the longest of which was declared by President Jimmy Carter and blocks property of the Iranian government from entering the country. The fact that there is little check on the use of emergency powers is worrying, especially if they may become political tools.
Even without an emergency, however, Congress appears to have almost completely ceded the power to use military force anywhere in the world. In 2001, just 17 days after 9/11, Congress passed the Authorization for Use of Military Force (2001 AUMF), which provides “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” When the 2001 AUMF was passed, it was determined that the 9/11 attacks had been orchestrated by Osama bin Laden and al-Qaida, operating out of Afghanistan. The U.S. began military operations against al-Qaida in Afghanistan on Oct. 7, 2001, which ultimately led to the death of bin Laden on May 2, 2011, in Pakistan.
But from 2001 to 2015, the 2001 AUMF was also used 37 times under both the Bush and Obama presidencies, some for operations whose connection to 9/11 appears dubious at best. The 2001 AUMF was used to justify military action in Iraq, the Philippines, Georgia, Yemen, Djibouti, Somalia, Turkey and Libya and new military operations against ISIS in Iran and Syria. This expansive view of the 2001 AUMF continued in the Trump administration, which saw new deployments in Niger, Chad, Nigeria and Lebanon. The Trump administration also determined it needed no new congressional authority to keep troops in Syria and Iraq, even launching cruise missiles into Syria. This end run around congressional authority has continued for more than 17 years.
It is time for Congress to consider its role in our tripartite government and recognize what it has given away. Especially in the case of powers expressly delegated to Congress in Article II, including appropriations and war powers, Congress should be cautious about ceding those powers elsewhere. Unwelcome as this current situation is, it provides Congress with a reason to institute periodic review of presidential actions taken in its lane. We hope that it does so.