dChan - Q Origins Project Archive

The President’s Emergency Declaration Is the Congressional Check on Presidential Power

We can certainly discuss whether Congress can do more to rein in presidential emergency powers. But the notion that Congress did not anticipate the possibility a president might abuse emergency powers when enacting the National Emergencies Act in 1976 turns the purpose and effect of the Act upside-down. The Act itself—and the declaration requirement in particular—is a congressional limitation on executive power, not an authorization or grant of new emergency powers.

First and foremost, the National Emergencies Act (50 U.S.C. §§ 1601-1651) does not itself grant or delegate any emergency powers to the president. The Act sets out requirements for the President to follow in order to use emergency powers already delegated in other, already existing legislation. The declaration requirement is a congressional requirement placed on the president both to trigger public attention to the president’s action and to create the possibility of a congressional negative on the president’s action.

The Act itself regulates presidential emergency powers enacted in other legislation Congress passed. Here’s the sequence: Congress enacts some law granting the president the power to act in a specified fashion in an emergency. The National Emergencies Act then adds the additional requirement that the president officially declare a national emergency in order to access that previously granted power.

But that’s not all. The National Emergencies Act did not simply impose the formalism of a presidential declaration in order to access congressionally-delegated emergency powers. The Act created an additional congressional check on the exercise of presidential emergency power in the form of a legislative veto. To wit, Congress could reverse the president’s declaration—and so prevent the use of emergency powers that Congress itself granted to the president—by a majority vote of both chambers.

https://www.lawliberty.org/2019/02/18/the-presidents-emergency-declaration-is-the-congressional-check-on-presidential-power/