Chairman Nadler Statement for Hearing on "Examining Potential Reforms of Emergency Powers"
Washington, May 17, 2022
Washington, D.C. - Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, during a Subcommittee on the Constitution, Civil Rights, and Civil Liberties hearing on " Examining Potential Reforms of Emergency Powers ":
“Since 1976, when Congress passed the National Emergencies Act, U.S. Presidents have declared the existence of 75 national emergencies, justifying their potential exercise of emergency powers. Of those 75 declarations, more than 40 remain in effect, with the oldest dating back to the 1970s. This means that for nearly five decades, this country has technically been in some form of a state of emergency. That is to say, some Americans have lived their entire lives under emergency rule.
“This is deeply problematic, given the numerous powers a president can exercise upon issuing an emergency declaration. Experts have noted that at least 123 distinct statutory provisions become available to the president when invoking the National Emergencies Act. These statutory provisions delegate a broad range of authority to the executive branch, including the ability to test biological and chemical agents on humans, to suspend statutory wage-rate requirements for public contracts, or to take over communications networks.
“Even more problematic is that the president need not show any relationship between the declared emergency and the statutory provision being invoked. Instead, the president is essentially given carte blanche freedom to act once an emergency is declared.
“As we will hear from our witnesses today, the danger of unfettered executive power triggered by an emergency declaration has been a longstanding problem across administrations of both parties.
“Indeed, Congress enacted the National Emergencies Act to curtail certain abuses of the emergency authorities that had come before. The Act provides a general framework through which the president can declare national emergencies and—most importantly—through which Congress can review and terminate them.
“At the time the law was enacted, it allowed Congress to terminate any emergency by a majority vote in both Houses. But in 1983, in INS v. Chadha, the Supreme Court held that Congress could not veto actions taken by the executive branch through majority votes in the House and Senate alone. Instead, the Court held that if Congress wanted to override the president’s actions, it had to pass a new law, which required either the president’s signature or a veto override.
“Consequently, in 1985, Congress amended the National Emergencies Act to be consistent with that ruling. Unfortunately, in doing so, Congress lost a substantial amount of its constitutional power to constrain the president, making it effectively impossible for Congress to revoke the power that the president assumes upon declaring a national emergency.
“The bottom line now is that if the president declares an emergency, and we in Congress do not like it, either we must convince the president to sign a joint resolution to terminate his or her own emergency declaration—an unlikely occurrence—or we need a veto-proof majority in Congress, which is very difficult to muster. While, in principle, it should not require a supermajority of Congress to stop the president from abusing power that Congress has delegated, the Court has forced our hand.
“We may agree that the president should be allowed some types of discretion during true emergencies, but an emergency cannot continue in perpetuity. So, to shift the burden of inertia, we must set a time limit for emergencies—a reasonable proposal might require that they automatically expire after 20 days unless Congress ratifies the emergency declaration by law.
“This type of sunset provision would restore the authority and the responsibility to change the law to where it belongs—in Congress. A similar provision was included in the Protecting Our Democracy Act, which passed the House last year, and I hope the Senate will join us in this important legislation.
“Our nation’s founders left it up to all of us—including those of us in Congress—to act as guardians against assault on our constitutional order. That means we must reform the National Emergencies Act to ensure that future abuse will not occur.
“Otherwise, as Senators Church and Mathias warned almost 50 years ago, ‘the unmistakable drift toward [a] one-[person] government will continue.’
“I recognize that we will not solve all these issues today, but I am eager to continue this important dialogue. I thank the witnesses for their participation, I look forward to their testimony, and I yield back the balance of my time.