The NYU Brennan Center for Justice recently published a valuable report entitled "Seven Solutions to Rein In Abuses of Executive Power."
asserted
Center → publish → Power
But I agree with the vast majority of their recommendations here.
asserted
I → agree → recommendations
We do indeed have an overgrown executive, and it needs to be pared back.
asserted
it → have → executive
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.
asserted
presidents → agree → 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.
asserted
These → run → transportation
They are intended for sudden, fast-moving crises that Congress can't address quickly or flexibly enough.
asserted
Congress → intend → that
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.
asserted
presidents → stretch → safeguards
There are currently 51 active states of emergency, and the longest-running has lasted 47 years.10
asserted
running → be → emergency
Any emergency that persists for generations is, by definition, not an emergency; it's a problem that can be addressed through ordinary lawmaking.
asserted
that → persist → 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.
asserted
Congress → use → signature
But the Supreme Court struck down that procedure, known as a legislative veto, in 1983.
asserted
Court → strike → 1983
Today, ending an emergency effectively requires a two-thirds majority in both chambers to override a presidential veto.
asserted
majority → end → 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.
asserted
Congress → amend → assent
And presidents should be required to share detailed reports on their uses of emergency powers.
asserted
presidents → require → 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.
asserted
them → receive → misuse
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.
asserted
potential → impose → abuses
I completely agree, and have previously advocated similar reforms, myself.
asserted
I → agree → reforms
Brennan is right that IEEPA should be tightened up.
asserted
IEEPA → tighten → ?
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.
asserted
it → rule → 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.
asserted
they → add → emergencies
Congress would do well to amend relevant emergency statutes to make clear that such nondeferential judicial review is available.
asserted
is → do → statutes
I also strongly endorse Brennan's recommendations on constraining laws governing the domestic use of the military.
asserted
I → endorse → 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.
asserted
what → strike → federalization
But, as the Brennan report indicates, there is still a lot of potential for abuse, especially when it comes to the Insurrection Act.
asserted
it → indicate → 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."
asserted
I → agree → behalf
I doubt that these amendments have much chance of being enacted, given the extreme difficulty of passing any constitutional amendment.
asserted
amendments → doubt → amendment
On the other hand, the reforms to emergency powers and domestic use of the military can be adopted through ordinary legislation.
asserted
reforms → adopt → legislation
In some cases, they can also be bolstered by stronger judicial review under existing laws and provisions of the Constitution.
asserted
they → bolster → Constitution
I do have a few disagreements with the report.
asserted
I → have → 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.
asserted
authors → go → Slaughter
The decision's scope remains uncertain.
asserted
scope → remain → ?
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.
asserted
it → apply → 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.
uncertain
agencies → think → heads
I would also have liked to see more recognition that curbing excessive executive power requires curbing the scope of federal power generally.
asserted
curbing → like → power
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.
asserted
that → have → 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.
asserted
administrations → say → 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.
asserted
Goitein → keep → administrations
For example, she condemned President Biden's attempt to use emergency powers to effectuate massive student loan forgiveness.
asserted
she → condemn → forgiveness
And so did I.
asserted
I. → do → ?
The Aporia
