Congress should restore checks and balances and rein in emergency powers. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ 
Brennan Center for Justice The Briefing
Presidential declarations of emergency should be rare, short-lasting, and tailored to the emergency that prompts them. Unfortunately, none of these words describe the use of presidential emergency powers in the 21st century.
My colleague Liza Goitein testified before Congress today about the need to reform the emergency powers that Congress granted the president under the 1976 National Emergencies Act. She explained that there are currently 41 declared national emergencies, most of which have been in place for more than a decade. Eleven emergencies declared during the George W. Bush administration remain in effect, five from the Clinton administration, and one that goes all the way back to the Carter years.
A condition that remains in place for 10, 20, or 40 (!) years is not an emergency. Within months of any emergency declaration, Congress should be able to meet, deliberate, and perform its legislative duties — reestablishing regular order. Emergency powers grant the president extraordinary discretion, skewing the normal balance of power between Congress and the executive. They are highly prone to abuse and should be deployed only when necessary and for a strictly limited period.
Some of the emergency powers Congress has made available to the president are so breathtaking in their vastness that they would make an autocrat do a spit take. Presidents can use emergency declarations to shut down communications infrastructure, freeze private assets without judicial process, control domestic transportation, or even suspend the prohibition on government testing of chemical and biological agents on unwitting human subjects.
Congress has long known that these powers are in need of better safeguards. The National Emergencies Act attempted to rein in emergency powers, but it failed. Its requirement that presidents renew emergency declarations annually has become a mere exercise in paperwork — presidents have proven themselves exceedingly reluctant to walk back their own power. Another provision in the law, which allowed Congress to override a presidential emergency declaration by majority vote and without the president’s signature, was declared unconstitutional.
Congress isn’t blameless. It provided these emergency powers in the first place, including some that clearly lack sufficient guardrails. It also has a legal obligation to review declared emergencies biannually. Until recently, it ignored that duty, preferring to let the executive branch hoard power that should be shared between the branches.
Now is the time to act. There is bipartisan consensus in favor of reforming emergency powers to restore Congress’s role as a check on executive power. Legislation exists that would limit emergency declarations to 30 days without explicit congressional approval. It’s good commonsense lawmaking, and Congress should pass it immediately. (Like it’s an emergency.)

 
A Pretext for Voter Intimidation
Florida and Texas claim to be protecting elections from fraud, but their actions tell a different story. Unable to find any evidence of widespread fraud, they have instead politicized law enforcement to punish people with past convictions who made honest mistakes about their eligibility to vote. In context, the true motive behind both states’ hunt for fraud seems clear, Sara Carter writes: “intimidating citizens with prior convictions from participating in elections.” Read more
The Supreme Court’s Radical Shift
As we await the upcoming Supreme Court rulings on race and democracy, we’re still experiencing the fallout of last year’s regressive decisions on abortion, guns, and environmental regulation. This isn’t the first time the Court has taken an extreme, activist, or partisan turn. In a discussion about his upcoming book, The Supermajority: How the Supreme Court Divided America, Michael Waldman explains how examining the history of high court activism should serve as a wake-up call for progressives to advocate for judicial restraint and push for a vision of an enduring Constitution that looks forward, not backward. READ MORE
Holding States Responsible for Climate Change
The country’s first constitutional climate trial will begin in a Montana state courthouse next month. A group of plaintiffs ranging from toddlers to teenagers will try to prove that Montana’s fossil fuel–friendly energy policies are worsening climate change — and violating the state constitution’s guarantee of “a clean and healthful environment” in the process. “The case will be a key test of the impact that environmental rights inscribed in state constitutions can have on state actions that contribute to the climate crisis,” Sabin Center Executive Director Michael Burger writes in State Court Report. Read more
A Short-Lived Win for Abortion Access in Montana
Earlier this month, the Montana Supreme Court struck down a law restricting the pool of legal abortion providers and reaffirmed the right to abortion under the state’s constitution. Nevertheless, new abortion restrictions enacted shortly after the ruling mean the legal fight over reproductive freedom in Montana isn’t over. “As the legal battles continue in Montana and beyond, state supreme courts’ interpretations of their constitutions are sure to play a pivotal role,” Gabriella Sanchez writes in State Court Report. Read more
Doubling Down on Harmful Immigration Policy
This month, President Biden responded to the end of Title 42 — a pandemic-era policy that expelled tens of thousands and migrants and asylum seekers from the United States — by boosting military operations at the U.S.-Mexico border. But he should be taking the opposite approach, Joseph Nunn argues. “The militarization of the southern border not only stigmatizes migrants and asylum seekers but also undermines core legal principles designed to protect democracy and individual liberty,” he writes in Just Security. Read more
Giving State Law Its Due
Much attention is paid to the field of federal public law. Yet state institutions often shape people’s day-to-day lives more than their federal counterparts. A new State Court Report feature by Washington Law School professor Miriam Seifter provides an overview of the fascinating new scholarship on state constitutions and institutions and makes a case for why they deserve their fair share of attention. READ MORE

 
Coming Up
Wednesday, June 7, 3–4 p.m. ET
 
Join us for a live discussion about the death penalty, justice, and empathy. Panelists Alex Mar, author of Seventy Times Seven: A True Story of Murder and Mercy, and journalist Josie Duffy Rice will be led in conversation by moderator Laura Coates of CNN. RSVP today
 
Tuesday, June 13, 6–7 p.m. ET
 
The most extreme Supreme Court in decades is on the verge of changing the nation — again. How did we get here? How will overreach by the justices impact the 2024 election? And what can we do to protect American democracy from a deeply political, fiercely partisan Supreme Court? Join us for a discussion of Brennan Center President Michael Waldman’s new book, The Supermajority: How the Supreme Court Divided America, about the Court’s devastating 2021–2022 term. He will be joined by moderator George Stephanopoulos of ABC News, as well as constitutional law scholars Wilfred Codrington III and Cristina Rodríguez. RSVP today
 
Produced in partnership between 92NY’s Newmark Civic Life Series and the Brennan Center
 
VIRTUAL EVENT: The Supermajority
Wednesday, June 21, 1–2 p.m. ET
 
Today's Supreme Court is the most extreme in decades. Nine unelected justices hold lifetime seats with great power and, driven by the majority’s originalist ideals, they are rapidly upending American life as we know it. Join us for a virtual event with Brennan Center President Michael Waldman, author of The Supermajority: How the Supreme Court Divided America, for expert analysis on the threat the current Court poses and what must be done to shore up democracy. RSVP today
Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

 
News
  • Douglas Keith on the stakes of this year’s Pennsylvania Supreme Court election // CNN
  • Michael Li on the state of partisan gerrymandering // NPR
  • Katherine Yon Ebright on the Pentagon rules governing the use of proxy forces // NEW YORK TIMES
  • Joanna Zdanys on small donor public campaign financing in New York // NY1

 
 
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