New Brennan Center Report on Curbing Executive Power
· Reason
The NYU Brennan Center for Justice recently published a valuable report entitled "Seven Solutions to Rein In Abuses of Executive Power." The Brennan Center is well to the left of me. But I agree with the vast majority of their recommendations here. We do indeed have an overgrown executive, and it needs to be pared back. I particularly agree with the excellent section on constraining emergency powers:
With just a signature, presidents can declare a national emergency and unlock special powers contained in more than 130 statutory provisions. These run the gamut from the seemingly trivial to the near-dictatorial, including powers to shut down or take over communications infrastructure, freeze Americans' bank accounts, and control domestic transportation. They are intended for sudden, fast-moving crises that Congress can't address quickly or flexibly enough. But presidents of both parties have stretched the meaning of "emergency" far beyond reason, enabling them to draw from a growing stockpile of statutory authorities with few real safeguards.
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There are currently 51 active states of emergency, and the longest-running has lasted 47 years.10 Any emergency that persists for generations is, by definition, not an emergency; it's a problem that can be addressed through ordinary lawmaking. Yet presidents have used emergency powers to bypass Congress and unilaterally advance their policy goals.11
The National Emergencies Act once allowed Congress to terminate emergencies with a simple majority vote and without the president's signature. But the Supreme Court struck down that procedure, known as a legislative veto, in 1983. Today, ending an emergency effectively requires a two-thirds majority in both chambers to override a presidential veto.
Congress should amend the National Emergencies Act to constrain executive overreach.12 Emergency declarations should expire automatically after 30 days unless Congress approves a one-year extension, renewable annually with Congress's assent. And presidents should be required to share detailed reports on their uses of emergency powers. Proposals along these lines have received widespread bipartisan support, with versions of these reforms overwhelmingly passing out of the relevant House and Senate committees in 2024.13
Additionally, Congress should amend specific emergency statutes whose extensive delegations of power and inadequate safeguards make them susceptible to misuse. Of particular concern is the International Emergency Economic Powers Act, the most frequently invoked presidential emergency authority.14 Sanctions imposed under this law can equate to a "financial death sentence" lasting years or decades.15 Although the Supreme Court blocked Trump's effort to use the law to set global tariffs, the potential for other abuses remains.
I completely agree, and have previously advocated similar reforms, myself. Brennan is right that IEEPA should be tightened up. While the Supreme Court did rule (in a case I helped litigate) that IEEPA cannot be used to impose tariffs, it still includes a lot of other dangerous powers.
I would add, as I did in this article, that invocations of emergency powers should be subject to nondeferential judicial review, to ensure that they are used only in the event of genuine emergencies, not bogus ones. Congress would do well to amend relevant emergency statutes to make clear that such nondeferential judicial review is available.
I also strongly endorse Brennan's recommendations on constraining laws governing the domestic use of the military. The Supreme Court did strike down Trump's attempts to use bogus pretexts for federalizing the National Guard; the Ninth Circuit recently reinforced that ruling by rejecting the administration's broad definition of what qualifies as a "rebellion" justifying federalization. But, as the Brennan report indicates, there is still a lot of potential for abuse, especially when it comes to the Insurrection Act.
I also agree with the Brennan report's advocacy of constitutional amendments eliminating presidential immunity from criminal liability for acts undertaken in office, and barring him from pardoning crimes committed by" members of their inner circle, including immediate family members and senior administration officials" and those "convicted of crimes ordered by the president or committed on the president's behalf."
I doubt that these amendments have much chance of being enacted, given the extreme difficulty of passing any constitutional amendment. On the other hand, the reforms to emergency powers and domestic use of the military can be adopted through ordinary legislation. In some cases, they can also be bolstered by stronger judicial review under existing laws and provisions of the Constitution.
I do have a few disagreements with the report. For example, it is not clear to me that the Supreme Court's decision in Trump v. Slaughter goes as far as the authors suggest. The decision's scope remains uncertain. Among other things, it's not clear how wide a range of federal agencies it applies to and how to reconcile it with Trump v. Cook, decided on the same day. I also think they may overestimate Slaughter's impact, since most federal agencies are already not independent in the sense that there are legal constraints on the presidents' power to fire their heads.
I would also have liked to see more recognition that curbing excessive executive power requires curbing the scope of federal power generally. It is virtually impossible to have a federal government that regulates almost every aspect of human activity without simultaneously delegating vast - and often dangerous - discretion to the executive.
That said, the vast majority of the Brennan report's recommendations are well-taken. I hope future Democratic administrations and members of Congress act on them.
For those keeping score, it's worth noting that Brennan Center emergency powers expert Elizabeth Goitein, one of the authors of the report, is a long-time critic of abuses of emergency powers under Democratic administrations, as well as Republican ones. For example, she condemned President Biden's attempt to use emergency powers to effectuate massive student loan forgiveness. And so did I.
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