Fix the National Emergencies Act

I agree with the editors of the New York Times about this:

Senator Charles McC. Mathias, a Republican from Maryland who was a chief sponsor of the legislation, called President Gerald Ford’s signing of the bill “a historic act of relinquishing powers of the presidency” and envisioned it would be a tool for “restoring constitutional democracy.”

But in the more than 40 years that the National Emergencies Act has been in effect, it’s been subject to few checks and balances. That Congress has never invoked its own authority under the act to rebuke a president until now is a sign of the statute’s weaknesses.

The resolution now before Congress serves mainly to nullify Mr. Trump’s border emergency declaration. But further reforms are called for to protect the nation from future excesses.

For one thing, the National Emergencies Act doesn’t define what an emergency is — a loophole that Mr. Trump took advantage of by declaring that there’s a crisis at the border, contrary to all evidence. Congress could set clearer parameters, allowing a president to declare emergencies only when threats to the national interest are imminent and based on observable facts.

The current law also lets the president extend emergencies for years on end, simply by notifying Congress. Lawmakers would be wise to vest in Congress, rather than the president, the ability to extend an emergency. And even then, the time period for an emergency ought to be capped — no more semi-permanent emergencies of the sort that are still lingering on the books from as far back as the late 1970s. If a crisis becomes a nonemergency still requiring legislative action, Congress can address it the best way it knows how — by passing a bill.

The current standoff also shows that the law must be clarified to explain that being denied congressional funds toward achieving a policy goal is not, in fact, grounds for declaring an emergency.

It is clear, at least to me, that the president’s ability to declare a national emergency that will never end on his sole authority for any reason he sees fit is an affront to our constitutional system and to the rule of law. Regardless of what motivated those who enacted the National Emergencies Act in the first place they clearly did not go far enough. It is long past time to remedy that. It’s already taken 40 years too long.