Hearing

• Mr. Soren Dayton, Director of Governance, Niskanen Center | Written Testimony
• Mr. Satya Thallam, Policy Advisor, Arnold & Porter | Written Testimony
• Ms. Elizabeth Goitein, Senior Director, Liberty and National Security Program, Brennan Center for Justice at New York University School of Law | Written Testimony

Opening remarks, as prepared, of Economic Development, Public Buildings, and Emergency Management Subcommittee Chairman Scott Perry (R-PA) from today’s hearing, entitled “Never Ending Emergencies – An Examination of the National Emergencies Act”:

I want to thank our witnesses for being here today to discuss the National Emergencies Act (NEA), and the presidential powers associated with it. This is the first time this Subcommittee has held a hearing to examine the NEA, and I hope it will be useful for Members to evaluate potential reforms to the NEA.

The NEA was enacted by Congress in 1976 to provide a framework for Congress to provide oversight and accountability of presidential emergency powers. The law’s intent was to allow Congress the ability to review and terminate the President’s use of over 120 emergency powers scattered throughout the United States Code.

Unfortunately, the mechanisms put in place by Congress were watered down after the Supreme Court case, United States v. Chadha, which resulted in the current requirement that Congress must pass a joint resolution and that it must be signed by the President – the very person Congress wants to hold accountable.

In effect, this means any check on the President’s use of some of these extraordinary powers needs a super-majority to overcome a veto. The NEA also directs Congress to review declarations every six months. 

However, there are currently 41 ongoing emergency declarations under the NEA, that date back to the Carter Administration, which Congress has not actively reviewed.

In fact, the only time Congress has effectively terminated an emergency was earlier this year, with the passage of House Joint Resolution 7, which terminated the COVID-19 emergency declaration. And, this was only after President Biden agreed to end the declaration, signing the resolution last month.

It’s time we look closer at the presidential powers authorized for such declarations that we have allowed to continue indefinitely. It’s also time we get a handle on the funding associated with these declarations and where the statutorily required expenditure reports are going.

It is not clear whether and to whom the required expenditure reports under the NEA have been sent. There is also no definition for “emergency” under the NEA. The President can declare an emergency for anything he deems to be an “emergency.”

There is so much risk associated with this and virtually no checks or accountability. The NEA can unlock over 120 statutory emergency powers, some of which seem mundane, but others range from commandeering the domestic transportation network, to taking over communication channels and distribution of goods, to waiving restrictions on human testing of biological and chemical weapons.

I look forward to hearing from our panel today on their thoughts on the risks associated with the NEA and potential solutions for Congress to pursue to finally check the President’s powers when it comes to these emergencies.