Lawfare Daily: Bob Bauer and Liza Goitein on Emergency Powers Reform

[Intro]

Liza Goitein: The National Emergencies Act does not define what an emergency is. It does not establish any substantive criteria that have to be met for the president to declare a national emergency. So that is pretty much within the near total discretion of the president to decide what constitutes a national emergency under this law.

Kevin Frazier: It's the Lawfare Podcast. I'm Kevin Frazier, assistant professor at St. Thomas University College of Law and a Tarbell Fellow at Lawfare, joined by Bob Bauer, Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, and Liza Goitein, Senior Director of Liberty and National Security at the Brennan Center.

Bob Bauer: This is an example of Congress for a long period of time basically prepared to cede authority that it needs now to exercise to constrain presidential abuse of power.

Kevin Frazier: Today we're talking about emergency powers, particularly the National Emergency Act or NEA. Congress enacted the NEA as a missing check on executive emergency power. That goal has not been realized.

[News Update]

Hi, listeners. Before we dive into the weeds of the NEA, the National Emergency Act, and the longer conversation with Bob Bauer and Liza Goitein, I'm joined by Molly Reynolds to help update you all on the latest occurrences on the Hill. I talked with Bob and Liza back in August, and as they forecasted, things are happening on the Hill and we may see some movement? Let's dive in and see what Molly has to say about that. So, Molly, what movement are we seeing with respect to emergency powers and some potential reforms on the House side? Let's start there.

Molly Reynolds: Sure. Things are happening. We're recording this on Wednesday, September 18th, and earlier today in the House Transportation and Infrastructure Committee which, yes, has jurisdiction over legislation related to the National Emergencies Act, I think because of the kind of connection to sort of natural disasters and that kind of emergency, which is in TNI's jurisdiction. But they're the ones who have responsibility for these issues in the House.

They had a long markup, so a long meeting, today where the committee considered a whole host of pieces of legislation in its jurisdiction to decide whether or not they wanted to approve those bills at the committee stage to send them onto the floor. One of the bills on the agenda for the Transportation and Infrastructure Committee today was the Article ONE Act, which is one of the pieces of legislation that would make changes to the National Emergencies Act. It is principally focused on creating a requirement that a national emergency, as declared by the president, is subject to congressional approval. Right now, the onus is in the opposite direction. It's that if the president declares a national emergency after a certain period of time, there are expedited procedures available in Congress, particularly in the Senate, to bring a resolution to disapprove of that declaration up for consideration. But because it's a disapproval resolution, it only takes effect if both chambers pass it and the president signs it, or if Congress is able to overcome a veto. And so, getting, sort of shifting the direction here is consequential and so that was in, that is the major focus of the Article ONE Act. And that was reported out of the Transportation and Infrastructure Committee by voice vote today.

Kevin Frazier: Okay. So, we see some progress potentially on Article ONE, a voice vote - that's gotta be somewhat a positive sign. Molly, do you get a sense that the House is going to act on that sooner rather than later?

Molly Reynolds: So I don't know. The House has lots of other things going on. As we're recording this, they are desperately trying to find a way to create a politically sustainable path to avoid a government shutdown at the end of this month, and so, that, I think, is going to take up a lot of folks’ focus. As we'll talk about in a moment the House is not the only player here. It also matters what the Senate wants to do. And I'll say that this, this issue of National Emergencies Act Reform sort of feels like the kind of thing that could get attached to something else eventually that is moving, even if it doesn't move on its own.

Kevin Frazier: And do you have any sense of why we've kind of seen this resurgence of focus on the Article ONE Act, for example, and more generally national emergency issues? Was there some impetus or are we just realizing deadlines are approaching? Congress is coming to an end. If there's a chance for bipartisan agreement on something substantive, why not move forward with it now?

Molly Reynolds: Yeah, I mean, that's sort of the best explanation I have. I don't have any real insight into the issues here. But it is true that in both chambers, these issues are things that have that have bipartisan support, where they've been able to sort of build bipartisan coalitions around a question that really at its heart is a question of congressional power. Which is, can be a pretty hard case to make in the contemporary Congress. And so I find it promising that relevant committee actors, at least in the House and the Senate are paying attention.

Kevin Frazier: So quick mention of the Senate. Is anything percolating there with respect to these issues?

Molly Reynolds: Yeah, so, the Senate today also had, there was some action over there on the issue as well. So in the Senate, the, these issues are in the jurisdiction of the Homeland Security and Government Affairs Committee. They also had a long markup today where they considered both pieces of legislation and some nominations. And there we saw a bill related to National Emergency Act reform called the REPUBLIC Act, I should say in both these cases, Article ONE and REPUBLIC are backronyms. So like each letter in those words stands for something that makes up the title of the bill. Members of Congress love this.

So there we saw the committee in the Senate report out the REPUBLIC Act which is principally sponsored by Rand Paul, the committee's ranking member, that got reported on a 13 to 1 vote. There, again, the bill focuses on kind of creating this requirement that Congress approve of declarations of national emergency. It also has some provisions related to more disclosure around documents that are related to the presidential emergency actions. The sort of most interesting thing in the Senate markup was a sort of exchange between Gary Peters, who's the chairman of the committee, and Rand Paul, who's the ranking member, and then Josh Hawley, who had some questions about the way the legislation interacts with the president's tariff powers under IEPA. So, if you’re motivated by those issues, you can go back and watch the markup. But fundamentally, again, we saw pretty broad bipartisan support for moving forward with this legislation in the Senate today as well.

Kevin Frazier: Wow. Well, from the Article ONE Act to the REPUBLIC Act to IEPA to the NEA, lots going on, lots to pay attention to, and all the more reason to get the excellent insights from Bob and Liza in the podcast that follows. Molly, thanks again for this update, and we'll go ahead and turn it over to the main podcast.

[Main Podcast]

Liza, you've been on the emergency beat since before it was cool. You've been studying these issues for a long time, developing incredible resources on statutory emergency powers, as well as on the uses of those powers, and let's just start off with a key fact from the get-go. How many national emergencies are we currently living under?

Liza Goitein: 43.

Kevin Frazier: 43!

Liza Goitein: We are in 43 states of emergency. That may come as a surprise to some people who probably have not noticed 43 emergencies unfolding around us But yes, we are in 43 states of emergency.

Kevin Frazier: It's hard to count 43 emergencies let alone any number over a dozen. But what are the nature of these emergencies? Can you give us some idea of just how wide ranging or far back some of these emergencies may go?

Liza Goitein: 40 of these emergency declarations are for the purpose of imposing sanctions under the International Emergency Economic Powers Act. And that is a law that allows the president in a national emergency to take a range of financial measures to address an unusual or extraordinary threat that is coming at least partially from overseas. The thing about IEPA, this law that underlies 40 of the existing national emergencies, is that, almost from the very start, presidents have treated IEPA not as an emergency power, but as a general delegation of sanctions authority. And while that's not a great thing for presidents to be using an emergency power to impose sanctions, simply to advance foreign policy priorities, and you know, these are important foreign policy priorities to be sure, but they don't necessarily rise to the level of emergency. So while this is not a great thing, the fact of the matter is that Congress has been quite happy to delegate the foreign sanctions portfolio to the president. So, in some ways, these IEPA declarations really need to be considered separately.

Outside of IEPA, national emergency declarations have actually been few and far between. We've only had seven of them since the National Emergencies Act was passed. Three of them addressed foreign attacks or invasions. Two of them addressed pandemics, one addressed a hurricane and one addressed migration at the southern border. So there have been much fewer of those. I will say that there are a couple of those that are currently in place among the three that are not IEPA declarations, have been in place way too long. So we are still in a national emergency over Cuban attacks on U.S. aircraft that happened in the 1990s. And we are still in a national emergency over 9/11, that has been in place since 9/11 and is being used to sort of artificially prop up military strength for reasons having nothing to do with 9/11. So, while there haven't been the same or there hasn't been the same proliferation of national emergencies outside the IEPA context, we still have this problem of emergencies staying in place for much longer than they need to.

Kevin Frazier: Well, I'm happy to report that from down here in Miami, I'm not presently concerned about any Cubans flying any aircraft over Florida airspace, but I'll be sure to let anyone know if it rises to the level of an emergency.

Bob Bauer: Well, the fact that you're not aware of it is probably-

Kevin Frazier: There we go! There's an emergency going on.

Liza Goitein: Yeah. Well, let's be clear. I mean, this emergency declaration from the 1990s is being used to implement a naval blockade of Cuba still. But, you know, if it is the view of these successive administrations since the 1990s that we ought to have a more or less permanent policy of a naval blockade against Cuba, then Congress should pass a law providing that authority rather than creating this permanent state of emergency where no actual emergency exists in order to implement that policy.

Kevin Frazier: So that begs the question, and it's a question all of us lawyers love to ask, which is what is the actual dictionary definition of an emergency? And don't worry listeners, I have that ready for you. So, Webster defines an emergency as “an unforeseen combination of circumstances or the resulting state that calls for immediate action.” There is no textual written definition of an emergency under the NEA, correct?

Liza Goitein: That's correct. The National Emergencies Act does not define what an emergency is. It does not establish any substantive criteria that have to be met for the president to declare a national emergency. So that is, pretty much, within the near total discretion of the president to decide what constitutes a national emergency under this law.

Kevin Frazier: And so reading the legislative history of the National Emergency Act, we see that the absence of a definition, of a specific definition in the NEA, was intentional. Congress didn't want to confine the president to a certain criteria for an emergency, but-

Liza Goitein: Actually, that's not quite right.

Kevin Frazier: Not quite right, okay-

Liza Goitein: That's not quite right. It's actually the opposite. Lawmakers tried to come up with a definition of national emergency, and they came up with some language about a particularly grave or serious threat. There was language of that nature. Ultimately, they decided not to do that because they were worried that they would actually expand the cases in which Presidents would be able to declare an emergency. That this would in fact become an independent grant of authority when what they wanted to do was to limit the president to the circumstances that were enumerated in the particular statutes that provided the power.

So let me just explain very briefly, because this is important. What the National Emergencies Act does is it allows the president to declare a national emergency pretty much whenever the president sees fit. And then at that point, the declaration unlocks statutory authorities that are contained in more than 130 different provisions of law. All of which say something like, in a national emergency, the president can do x. Now, when Congress passed the National Emergencies Act these laws that said in the, in a national emergency, the president can do x, these laws already existed. There was just no overarching statute that governed how this whole process would work. And that's what the NEA was.

But what Congress decided was that these individual statutes that say in the national emergency, the president should do x, should themselves contain the limitations on when the president could act. And Congress did not want to create a definition of national emergency that would somehow expand the circumstances in which the president could declare a national emergency. The problem with this theory, with this approach, which sounds good on paper, is that in practice, none of the laws, or sorry, very few of the laws that Congress has passed actually include restrictions on when those particular powers can be implemented. So Congress wanted to rely on statutory restrictions that, in practice, don't actually exist.

Kevin Frazier: We know that the NEA was supposed to be an improvement on the status quo. It was supposed to constrain, at least slightly more so, the number of statutory powers available and in particular to give Congress a check on those declarations of emergencies. Bob, can you fill us in on the details of how the NEA was supposed to work, and how that's played out in practice?

Bob Bauer: Well, and let me say, Liza gave a very good explanation of the history here, and there is a notion of emergency, of course, and so I was looking at some particular language used in one of the pieces that I drafted with Jack Goldsmith on this topic that suggests it has to be understood a certain way. A license, of course, has to be correct. The statute doesn't provide any kind of constraining substantive standard by which the president would exercise that authority.

But what we have seen, and it is, unfortunately, part of the story, and when I say unfortunate, that's a judgment that some people may agree with and some people may not. It is a story again here of what happens when you have the expansion of executive authority as an increasingly accepted tenet of executive power by both political parties. And Congress is, as a practical matter, sorting out into partisan camps and, to some degree, acquiescing, oftentimes because they will go the direction of the president affiliated with the same party, acquiescing, particularly in national security and foreign policy situations, and the assertion of unbounded executive authority, and so it goes in one direction.

Think about, for example, the War Powers Resolution, that's an example of that, where that was meant to be some sort of constraining force, holding the president accountable to the exercise of war powers for particular purposes under particular constraints, deployment of U.S. troops abroad. And yet as a practical matter, and these circumstances are very different, presidents have decided to interpret that authority, they don't directly challenge the constitutionality of the statute, as they will, and Congress is prepared to step back and permit that to happen. And this is an example of that, if you want to call it a syndrome, that's the way it tends to operate.

Kevin Frazier: When we go back to how the NEA has actually been implemented, one unexpected result was the Supreme Court interfering, perhaps, with one of the mechanisms that was supposed to be available to Congress to check the president, and that's the use of a concurrent resolution. So, Liza, can you break down what this concurrent resolution function was supposed to, what function it was supposed to serve, and why that's no longer on the table?

Liza Goitein: Sure. So, the concurrent resolution function was actually one of three major provisions in the original National Emergencies Act that were intended to serve as constraints on presidential action. And the first of those was a requirement that emergency declarations would expire automatically after a year unless the president renewed them. The second is what you're referring to: it was a provision that allowed Congress at any time to terminate an emergency declaration using a concurrent resolution, which is also sometimes called a legislative veto. That's a law that's passed by a simple majority of both houses that goes into effect without the president's signature. And then third, the National Emergencies Act required Congress to meet every six months while an emergency declaration was in place, to consider a vote on termination. And in fact, every single one of these ostensible safeguards has basically fallen apart.

So, the requirement to renew declarations after a year, you know, that was supposed to be the exception, renewal of declarations after a year. It has become the absolute norm. And in fact, most emergency declarations are renewed for 10 years or longer. There is, I think, as Bob mentioned, there is an emergency declaration still in place over the 1979 Iranian hostage crisis.

And then, as you were mentioning, Kevin, the Supreme Court, in 1983, ruled that concurrent resolutions or legislative vetoes are unconstitutional because they go into effect without the president's signature. And so today, if Congress wants to terminate an emergency declaration, it basically has to pass a law that the president signs.  And assuming the president's not going to sign a law that's terminating his or her own emergency declaration, Congress has to muster a veto-proof supermajority of both houses, which is incredibly difficult to do in today's political environment. And then finally, this requirement to periodically vote on emergency declarations was entirely ignored by Congress for more than 40 years. So those were the main safeguards that were in place, and really none of them has worked as Congress intended.

Kevin Frazier: So to ground this conversation a little bit more about how the NEA has played out in practice, Bob, can you walk us through how the absence of those checks really was on display during the Trump administration and his own invocation of the NEA?

Bob Bauer: I think, again, and this is a point that Jack and I make in our book, “After Trump,” you can look at the Trump experience as a sort of singular experience, I suppose those arguments are going to be made. But I think what you are, what the fundamental problem is, as we at some point start talking about sort of reform of NEA, is that over the whole course of presidencies in the modern era, we see increasing movement toward the expansive use of executive authority. And there is no reason to believe that, there's really actually no reason to believe that this is a partisan issue, which is the reason why there is a bipartisan basis for a reform initiative.

And so, I want to stress that in the first instance, because what I've been primarily concerned with, and I know, and so is Liza, who has been a leader in this area, is I'm primarily concerned about trying to bring the two parties in the recognition that it is not a particular administration or a particular presidency that is the basis for an immediate reform movement. It is that this is an example of Congress for a long period of time, basically prepared to cede authority that it needs now to exercise to constrain presidential abuse of power. And so, whether it is going all the way, the emergency had been sitting on the books for decades, or the controversial exercise of emergency power in any particular circumstances in relation to the border during the Trump administration, or in any other circumstances, President Biden and the student loan program, for example. The bottom line is this is a bipartisan issue, even if, you know, I as a Democrat would have particular objection to the circumstances in which the Trump administration exercised it, or Republicans decide to point fingers at the Biden administration.

Kevin Frazier: Just to clarify, real quick, that was in no way intended to be a, a partisan question, so much as pointing out that Congress did try during the Trump administration to end the declaration of an emergency on the southern border by the administration. But because of the decision in INS v. Chadha, it had to reach that veto proof majority in the Senate and the House and was unable to override Trump's ability. So, I wanted to just point out for folks that this intended check, even when Congress does choose to use it, which it rarely does, but even when it tries to use it, it's just really not meaningful given that you have to reach that veto proof majority.

Bob Bauer: Yeah, and I didn't, by the way, I honestly, I appreciate the clarification of what you meant by the question. I didn't take it as a partisan comment on your part. I want to be clear about that. I just wanted to make sure because there is a tendency in the debate at large for these reform issues to get bogged down in a question of, you know, who was the first, if you will, bad mover? And in this case, it is just a fundamental institutional question of constraining executive authority and reviving Congress' sense of itself as an institution that has a role to play. And we'll talk about that further when we move from the National Emergencies Act to the Insurrection Act.

Kevin Frazier: And Liza, would you want to jump in here?

Liza Goitein: Oh, I was going to say, because I do think this sort of tees up, the Trump declaration, really, to me, one of the things that's most remarkable about this whole system of national emergency declarations under the National Emergencies Act is how little abuse we have seen, until recent years. I mentioned before that there have been dozens of emergency declarations issued in, for the purpose of imposing sanctions under IEPA, in cases that fell far short of what we ought to consider a national emergency.

But if you bracket those declarations, the economic sanctions declarations, which again, really need to be looked at separately. For the most part, national emergency declarations were only declared when there was a sudden unforeseen crisis that required emergency action. That has changed under the last two administrations. We saw President Trump declare a national emergency for the purpose of securing funding for the border wall after Congress had repeatedly refused to allocate the funding that he wanted. And while the National Emergencies Act does not have a definition of national emergency, every dictionary includes the same criteria that the situation has to be sudden and unforeseen, and it has to require an immediate response.

Back in 2019, border crossings, unlawful border crossings, were hovering near a 40 year low. There was no sudden, unexpected change, and the president himself at the time basically said that immediate action wasn't required. He said, I could have taken longer to do this, I just wanted to go faster. So I used emergency powers. Moreover, he was using emergency powers for the express purpose, he admitted this, of getting around Congress, when Congress would not give him the policy priority that he wanted. So that, I think, to some extent, really broke a seal. Now Congress did try to stop that, and it was a bipartisan effort. There were twelve senators who crossed over party lines to vote in favor of a resolution to terminate that emergency declaration. But, I mean, and this is predictable, President Trump vetoed that resolution, and Congress couldn't muster the two-thirds supermajority of both houses that it would have needed to override that veto.

Fast forward, and President Biden relied on emergency powers, based on the COVID emergency declaration, to forgive student loan debt. Student loan debt, much like unlawful immigration, has been a long-standing issue, for many decades. And the proposal that President Biden was putting in place for emergency powers, the action he was putting in place was not some kind of temporary stopgap measure to get us past the emergency. It was a long-term policy solution to a long-standing problem, and it was something that Congress had considered and had not done. So once again we have this issue of emergency powers being used to deal with essentially policy disagreements with Congress. And Congress did eventually terminate that use of emergency powers that, terminated the COVID declaration, but only after President Biden had already said that he was planning to terminate the emergency declaration. So this wasn't the normal situation where Congress would have had to muster a supermajority. And in fact, Congress did not have a supermajority when it terminated the COVID declaration.

Kevin Frazier: And I think another really startling thing about the NEA is that once you declare an emergency, it's not as though you're limited to a subset of those 130-plus emergency statutory provisions. But instead you have full access, the president has full authority to now tap into any emergency provision, even if it's completely unrelated to the declaration at hand. So, it could be a hurricane and you're instead invoking the emergency power that allows any vehicle of any weight to go on I-95 between Bangor and Augusta, Maine, completely unrelated, but it's available.

Liza Goitein: Yeah, that's true for the most part. I mean, a few of those individual statutory provisions do have other limitations beyond the mere existence of an emergency declaration, but most do not. So, for the most part, the president is free to invoke any power he wishes. It doesn't have to relate to the nature of the emergency.

Bob Bauer: I just wanted to go back to what Liza said about breaking the seal, and that is that it's become more of a problem recently. And again, I just want to relate this again to institutional executive reform issues. Of course, what we have seen in recent years, and I'm stating the obvious here, but we've seen in recent years, is increasing challenges to presidents acting without congressional authority in a range of areas.

Each side, of course, accusing the other of doing it, but fundamentally where Congress exhibits gridlock and the president is trying to advance a domestic agenda, then attempting to exercise authority on some basis that doesn't require going to the Congress to accomplish their goals. And therefore, it's not surprising that the national, these emergency authorities have gotten absorbed into that particular debate. Because there's a much broader debate about what happens when presidents take office in a highly polarized circumstances with very pronounced policy goals, but find it difficult to work with a cooperative Congress toward the enactment of those goals in the ordinary course.

And so again, I do want to situate this whole NEA problem less into one party sort of zeroing in on the NEA in particular, or for that matter, we've heard discussions of the Insurrection Act, threatened rather than used in recent years. But put that again in the context of something that we see that is disturbing the general constitutional order, things generally into which this NEA, these emergency power issues, have been drawn.

Kevin Frazier: I do think it's a very fascinating point to say that we had Congress in the ‘70s say, don't worry, everyone, we're going to take on this additional responsibility. And ever since they've just kind of neglected that responsibility. And to your point, Bob, it's not a D thing. It's not an R thing. It's a Congress thing that we haven't seen them take up the mantle that they set out for themselves. But, we have seen some undercurrent, as you suggested, Bob, from folks on the right and the left to try to reform the NEA. Can you tee up, what is the Article ONE Act? Where does it stand right now? And can we expect any progress on it going forward?

Bob Bauer: Well, it's encouraging. I'm encouraged. I'd love to say, I don't want to get, you know, excessively optimistic about anything at this particular point, but we do have bipartisan agreement. And when I say bipartisan, I mean, both parties have not unanimously gathered around a particular position. But Senators Mike Lee and Richard Blumenthal are working together on Article ONE, on the Article ONE Act. And that is going to be, I think, pursued as an amendment to the NDAA, at least that's currently the plan. They filed that amendment, and it's going to be taken up in the House likely in mid-September.

And fundamentally it does the things that just by implication, you would imagine you'd want this kind of reform to cover. That is to say, to require congressional involvement, to put a limit on how long an emergency lasts, unless Congress acts to expressly renew it. And to introduce other requirements, including the president reporting more specifically on the nature of the emergency and the basis for declaring it. We're going to see something similar, by the way, similar kind of approaches, time limits, reporting responsibility, consultative responsibilities, also in the area of Insurrection Act reform. We haven't talked about that specifically, but once again, we're talking about trying to draw back from undoubted presidential exercise of executive authority. Bring Congress back into the picture, put limits on the president, that strike a balance between the need to address immediate emergencies, but what we have today, which is no clearly defined triggers, no time limits, no reporting, and other related congressional accountability or accountability to the Congress. And there is some bipartisan support for it. We've got a ways to go, but there is bipartisan support for it.

Kevin Frazier: And Liza, when we're thinking about one of the key areas of potential reform, as Bob highlighted, it would arguably be making sure that there's some more constraints on the kinds of powers that are available in a national emergency. Can you give us a sense of what powers are available under the NEA and how that might shift if the Article ONE Act does indeed get enacted down the road?

Liza Goitein: Sure. So, as I mentioned before, when the president declares a national emergency, that unlocks powers that are contained in more than 130 different provisions of law. A lot of those powers seem, you know, relatively measured and sensible in their face. For instance, there is a power that allows the Department of Transportation to waive weight limits on trucks that are carrying jet fuel on highways to Air Force bases. And you can see how that would be really important in an emergency or in a war, for example.

But there are a handful of these emergency powers that really do seem like the stuff of authoritarian regimes. For instance, there is a provision of the Communications Act dating back to 1942 that allows the president to take over or shut down radio communications facilities during a national emergency. If the president declares a threat of war, as well as a national emergency, he or she can go further and can take over or shut down wire communications facilities. That provision was last invoked during World War II, when wire communications meant telephone calls or telegrams, and frankly, less than half of American households even had a telephone. Today, that provision could arguably allow the president to assert control over U.S. internet traffic. So, this is an incredibly potent power.

I also think that IEPA is a very worrisome authority. As I mentioned, this, this is a law that allows the president to declare a national emergency, to deal with any unusual and extraordinary threat to the national security, foreign policy, or economy of the United States, as long as that threat has its source in whole or substantial part outside the United States. And at that point, the president can basically freeze any asset or block any financial transaction to try to address that threat. IEPA has mostly been used to implement sanctions against hostile foreign actors. It underlies our current sanctions regimes against Russia, Iran, North Korea, Venezuela, et cetera. But nothing in the law prevents the government from deploying it against Americans who are deemed by the executive branch to be contributing in some way to a foreign or partially foreign threat. And at that point, the government could literally make it a crime for anyone to rent a house to that person, give them a job, or, you know, or even sell them a loaf of bread.

There is still another law that allows the director of the Transportation Security Administration to exercise broad and unspecified powers over domestic transportation during a national emergency. At least in theory this could allow an administration to shut down domestic transportation altogether.

So there are some really incredibly potent powers here where the potential for abuse is obvious and alarming. And that is why it is so important for Congress to amend and reform the National Emergencies Act to include safeguards against abuse. And that's really what we're talking here, we're talking about the ability for Congress to serve as a meaningful check against abuse. And there are abuses that we can all think of based on the powers that I just talked about that really could undermine democracy itself. As well as some of the softer abuses that Bob and I have been talking about that have happened already which involve using emergency powers as a policy tool to get around Congress in cases where the president and Congress don't agree.

Kevin Frazier: Building off of that, just quickly, am I correct that the current version of the Article ONE Act exempts IEPA from its coverage?

Liza Goitein: It does exempt IEPA and I actually think there's a good reason for that. You know, as I mentioned earlier, IEPA is used mostly for sanctions regimes that aren’t relatively controversial and that Congress has been pretty happy with. And the Article ONE Act, as written, would require Congress to vote literally dozens of times every year on these sanctions regimes, which I think is something that at least members of Congress, for the most part, consider to be unnecessary.

There are also some unique concerns, about IEPA, that would not be addressed simply through a congressional approval requirement. For instance, there is a complete lack of due process in IEPA in those cases where IEPA is, and it has been on rare occasions in the past used to target U.S. persons, American citizens or residents of the United States. And there are also humanitarian concerns around IEPA, and sort of the blunt instrument of congressional approval would not sufficiently deal with those issues. So I do think it makes sense to reform IEPA, but to do so separately. There should be a congressional approval requirement, but it maybe should look a little different from the individualized, every year approval requirement contained in Article ONE Act for other types of emergencies. And there should also be due process reforms, humanitarian reforms. So IEPA really needs to be its own project, but it is a project that it absolutely has to be undertaken.

Bob Bauer: I just wanted to second the motion on the question of IEPA. I think that there are two different approaches. One the Blumenthal-Lee approach, and then there's also a different approach that in the REPUBLIC Act, I believe it's called, Rand Paul has put forward, one which excludes IEPA, one which does not. I think it's extremely important for any prospect of reform, just speaking on a practical level, to keep IEPA out of the conversation for the time being, because they think it'll be difficult, both as an executive branch matter and as a congressional matter to achieve reform. And the most important thing to do is to make a step in the right direction here. And therefore taking out IEPA which is, sort of a more fundamental tool of importance to the executive branch and national security matters, particularly as Liza discusses, in relation to the imposition of sanctions, is I think a more realistic way of charting the path to reform their keep put that to one side, address it separately. In the meantime, as a matter of what is within reach, go with NEA reform minus IEPA.

Kevin Frazier: Right. Well, and so speaking of other projects that Liza was mentioning, Bob, you've talked quite a bit about and hinted at the Insurrection Act, which has obviously become increasingly the subject of popular attention. What are the areas of potential reform and are we seeing any movement on the Hill with respect to those reforms?

Bob Bauer: Well, there again, I do think there is some basis for bipartisan support. The Insurrection Act reminds me very much, and therefore gives me some hope that it will be addressed the same way, as the Electoral Count Act that was reformed at the end of 2022. A terrible statute, badly drafted, full of vague terms, antiquated, and it just sits there because there's no immediate motivation to do anything about it.

The Insurrection Act is basically a license to the president to engage in the domestic deployment of troops without a clearly defined trigger, without any involvement by Congress, without any time limits on deployment. And while in some respects, by the way there have been some constructive uses of the Insurrection Act as for example, in federal desegregation efforts in the, in the in the 1950s and ‘60s, the potential for mischief, really destructive acts, again, by the executive with virtually no accountability, I suppose you could say, except for impeachment. I mean, some sort of, you know, extraordinary response. That potential remains very, very real.

And as you know, and here's where I will go back to Donald Trump. He and his and those around him, at least in the past, have been a very enamored about the potential uses of the Insurrection Act, for example, in responding to any resistance that they thought they might encounter if they went through with schemes that they later abandoned to do things like, you know, seize voting machines at the end of the 2020 election as a challenge to the contest. So this seems to be the time when both parties ought to agree. They don't want the other party, when its president is in the White House, to have access to this kind of authority on this kind of unbounded basis.

Again, Senator Blumenthal has been working on this reform and is looking for bipartisan partnership. And it seems to me we ought to be able to find it. I certainly experienced when I co-chaired an American Law Institute group with Jack Goldsmith on Insurrection Act reform. And we had a membership that was divided between Democrats and Republicans and it nonetheless came up with unanimous recommendations for Insurrection act reform, and it included a people with experience in the executive branch who had been in both the Obama and in the Trump administrations. So there, there is a understanding that something needs to be done. Whether that's within striking distance or not, I can't say.

Kevin Frazier: So, Liza, thinking about the potential need for Insurrection Act reform, are there any things that are the top of your agenda that you would recommend to anyone who may be listening who's keen to lean on your advice?

Liza Goitein: Sure. The Insurrection Act is one of the emergency powers. It's not technically an emergency power because the president doesn't have to declare an emergency, but it clearly provides extraordinary powers that are meant for extraordinary circumstances. So it is one of the emergency powers that really worries me the most. It gives the president very broad discretion to deploy federal troops to put down insurrections, suppress domestic violence, or enforce the law. It is the main statutory exception to the Posse Comitatus Act, which generally prohibits the military from engaging in law enforcement except as expressly authorized by law.

And the Posse Comitatus Act codifies a critical and longstanding Anglo-American principle, or I should say a tradition against military involvement in civilian affairs. Because time and again, history has shown that an army turned inward can very quickly become an instrument of tyranny. So, as an exception to a rule that's critical for democracy and liberty, you might expect the Insurrection Act to be narrowly framed, but that is not the case at all. The criteria for deployment are set forth in vague, archaic language that provides very few clear constraints.

So one provision, for instance, allows the president to deploy troops to suppress any unlawful combination or conspiracy that opposes or obstructs the execution of the laws of the United States. Well, what does that mean? I mean, in theory, those terms could encompass, you know, an unpermitted, but entirely peaceful protest against a controversial executive order. Another concern is that there are literally no constraints on what the president can do once he determines that the criteria for deployment have been met. The law doesn't just authorize the deployment of federal armed forces. It authorizes the deployment of the militia, which is defined in the law to include all able-bodied American males between the ages of 17 and 45. And if that's not enough, it allows the president to use quote, any other means to address the disturbance.

And last, but certainly not least, as Bob pointed out, there are no checks against potential abuse. The original version of the law, there was a version in 1792, required judicial approval before deployment of troops, and it also placed a time limit on using troops to enforce the law which could only be extended by Congress. But those safeguards were stripped out in subsequent amendments. So, the Supreme Court has now made clear that the current Insurrection Act leaves no room for judicial review of whether the criteria for deployment have been met. And the only way Congress can stop a deployment, similarly to emergency declarations, is to pass another law, presumably by a veto-proof super majority.

So, the Brennan Center has put forward a proposal for legislative reform of the Insurrection Act. We put that proposal forward in 2022. What our proposal would do and what I think needs to happen, is that it would more specifically and narrowly define both the criteria for deployment and what the president may do in response. And to ensure adherence to those limitations, the proposal also includes mechanisms for congressional approval, similar to what we've talked about with the NEA, except a somewhat shorter time frame during which the president could use the Insurrection Act without congressional approval as well as judicial oversight.

Bob talked about the working group that he was part of that ALI convened, and that working group put forward its own principles to guide reform of the Insurrection Act. There are some differences between the Brennan Center's proposal and the principles set forth by this group but there's much more overlap than, than difference. And I do think the changes that they are calling for are quite meaningful, and so I think Bob and I are pretty much aligned in terms of what needs to happen to reform this law.

Kevin Frazier: Well, for all the listeners on the Hill, you've got quite a lot of homework after this podcast. We'll have to leave it there. Thank you, Liza and Bob for joining.

Liza Goitein: Thanks so much for having us.

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