Legal expert: Congress should have more say when it comes to emergency powers


AUSTIN (Nexstar) — National security and constitutional law expert Steve Vladeck says it’s time for congressional lawmakers to revisit the National Emergencies Act. 

“I think when Congress enacted the National Emergencies Act, it was assuming two things that are no longer true,” said Vladeck, who is a professor of law at the University of Texas School of Law. “It was assuming that first there would be political safeguards so that the unpopularity of abusing the statute would be a sufficient lever against a president who might otherwise want to do it, but second, it was assuming it would have the power through a simple majority vote in both houses to terminate a national emergency that in Congress’ view was inappropriate. 

The National Emergencies Act was passed in 1976. In the case of President Trump’s declaration, this is his way of trying to access the funding he wanted for the border wall. Congress’ spending bill, which passed Thursday, had fewer funds allocated for the wall. President Trump declared a national emergency at the southern border of the U.S. on Friday.  

“We’re declaring it for virtual invasion purposes,” Trump said. “Drugs. Traffickers. Gangs.” 

Protestors nationwide rallied against his declaration on Monday. 

Vladeck said what Congress likely didn’t anticipate when it passed the National Emergencies Act was that the U.S. Supreme Court, around seven years later, struck down legislative vetoes. 

“For Congress to basically get rid of a national emergency today, it would require not just a majority of both houses, but a veto-proof supermajority of both houses and given the politics of the moment, that’s just not realistic,” he said. 

It’s even hard to predict what could happen with legal challenges, Vladeck said. 

“I think courts are going to be very reluctant to second guess whether there really is a national emergency, because the statute creates no criteria for measuring that,” he said. 

Vladeck, who has studied the National Emergencies Act extensively, penned his thoughts in an op-ed in late January. 

“I think there’s a much broader conversation that hopefully this episode will trigger. Not just about the National Emergencies Act, but about all kinds of statutes that delegate these broad, sweeping authorities to presidents without any opportunity for Congress to draw it back, barring a veto-proof supermajority,” he said. 

“Something we should all care about is the erosion of the separation of powers,” he continued. 

There are ideas Vladeck has in mind for lawmakers to implement to help Congress reign in its powers. 

“One of the things Congress might consider is a sunset, where if a president declares a national emergency, it automatically expires within 30 or 60 days unless Congress approves and passes legislation to sustain the national emergency,” he said. 

It’s a process that can help elected officials have more say in the process and in turn, impact constituents.  

“We should all be able to agree — that all things being equal — policies are going to be more democratic the more buy in there is from each player in our constitutional system,” he said. 

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