The presidency seems built for emergencies. It is always in session. Its officers and personnel have vast knowledge and experience and can act with speed and decision. But the Constitution, arguably, does not grant the president much in the way of emergency authority. The executive power was not understood to authorize the presidency’s predecessors to act contrary to existing law or to take whatever measures they deemed necessary to handle some perceived crisis. 

The Constitution, arguably, does not grant the president much in the way of emergency authority.

Moreover, the power to summon Congress on “extraordinary occasions” implies that the president can summon Congress so that the latter may enact legislation to handle emergencies. To be sure, some presidents—Abraham Lincoln, Harry Truman—took extraordinary measures grounded on the claim that the Constitution grants the presidency some emergency powers. But these presidents had many critics (including some on the Supreme Court), and it might be fair to say that the critics had the better of it.

As in the past, most emergency authority rests on statutes passed by Congress. There are two sorts of statutes: ex ante delegations, passed before a crisis, and ex post delegations, passed in the wake of an emergency. Ex post crisis delegations can be quite controversial (e.g., the Patriot Act). 

But Congress is in the driver’s seat during the crisis, actively considering what sorts of authority the executive ought to enjoy. In the best of worlds, Congress can pass a statute that is tailored to the crisis at hand. And if Congress does not believe there is a crisis or does not believe legislation is necessary, it will not pass an emergency measure.

As in the past, most emergency authority rests on statutes passed by Congress. 

Ex ante legislation can also be quite useful. In such legislation, Congress provides that if the president declares an emergency, the executive can take certain measures that are otherwise forbidden, like summoning militias, spending funds, seizing private property, and regulating exports or imports. In 2019, the Brennan Center for Justice said there were 123 statutes that authorized emergency or crisis measures.

The modern emergency regime is regulated, in the lightest of ways, by the 1976 National Emergencies Act. Among other things, the act requires publication of emergencies in the Federal Register and certain reporting by the president. The rules limit the duration of an emergency to one year, but they also contemplate the president extending the declaration for another year. That is one reason why some emergency declarations never terminate.

In an influential 2019 piece in The Atlantic, Elizabeth Goitein criticized such declarations. She observed that there were 30 emergency declarations in effect, many of which had lasted decades. A recent Congressional Research Service Report pegged the number at 37.

Something seems amiss if the president can declare an emergency, use authority reserved for crises, and then have those measures last for decades. People often think of emergencies or crises as states of exceptionality. If that is so, we cannot always be in a state of emergency, and presidents should not be repeatedly declaring emergencies.

Something seems amiss if the president can declare an emergency, use authority reserved for crises, and then have those measures last for decades.

I think there are at least three problems with ex ante statutes. First is the problem of deciding when an emergency or crisis exists and when it ends. One the one hand, if statutes define emergency or crisis with too much specificity, they may handcuff the president and be read by the executive (or the courts) as failing to authorize a crisis regime when many suppose one ought to exist. Put another way, a narrow definition of emergency will come at the cost of restraining the executive when some think that there is an emergency. On the other hand, if laws do not define and limit when crisis authority can be invoked, crisis powers will be used too often. Many people believe that describes our current predicament.

First is the problem of deciding when an emergency or crisis exists and when it ends. 

Second, there is a possible problem of overinclusion. There may be some “crisis” legislation that ought to be recharacterized as ordinary delegation. If Congress has been happy to have certain emergency declarations last for more than 40 years, it might seem that Congress wishes the executive to have some delegated authority without regard to whether there actually is an emergency. For instance, President Jimmy Carter’s 1979 Iranian emergency legislation continues to this day. This is perhaps a problem of characterization. Such a regime will appear overly permissive based on what is perhaps a misclassification. Reclassifying some legislation by stripping away all references to “emergencies” and the like will lead to greater confidence that the existing regime does not permit indefinite crises.

There may be some “crisis” legislation that ought to be recharacterized as ordinary delegation.

Third, there is a possible problem of duration. If we agree that some crises call for emergency authority, how long should the authority last? There are two ways of thinking about this. In the context of ex post legislation, it is perhaps wise to always include a sunset, after which the legislation expires. A limit of four to five years seems prudent. There is, of course, always a risk that the legislation will not be renewed. But any failure to renew would perhaps reflect differences of opinion about whether the crisis continues. Some argue that authorizations to use military force ought to come with sunsets because they believe that the president should not be able to invoke wartime powers some two decades after the 2001 and 2002 Authorizations for Use of Military Force (AUMFs) were passed for use in the conflicts in Iraq and Afghanistan. Another way of putting the point is that Congress ought to debate whether the War on Terror ought to continue, and AUMF sunsets might have ensured an overdue debate.

 If we agree that some crises call for emergency authority, how long should the authority last?

In the context of ex ante legislation, duration is also an issue. If Congress wishes to convey exceptional authority to deal with extraordinary times but is concerned with such measures becoming permanent or semipermanent, it can use a different form of sunset. It can provide that any emergency declaration lasts until 60 days into the next session of Congress. This approach permits the executive to act in a crisis, but it also gives Congress the final say-so.

If a crisis declaration is made while Congress is in session, Congress can think about whether a statutory solution is appropriate during its session, during the recess, and for 60 days into the next session. If the executive’s emergency declaration is made while Congress is between sessions, members have at least 60 days to consider whether permanent or semipermanent legislation is necessary. More concretely, Congress can decide whether to ratify or modify the executive’s measures.

Other issues are worth discussing, but focusing on three dimensions of emergencies—being more specific about what is an emergency, making sure that emergencies are true crises and not simply chronic problems, and having clear sunset provisions—is worth considering. In all cases, this approach requires greater congressional engagement and ensures that the president does not assume wider and perpetual powers not envisioned in the Constitution.