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The political class, including many conservative insiders, will look at you with wild eyes if you suggest that president has the authority to either declare an emergency at our border or use defense funds for an operation that should be the highest priority of national defense. But Congress’ own research arm makes it clear that such delegated authority to the president has been the norm since our Founding.
While many have complained that the 1976 National Emergencies Act (NEA) is too broad, the Congressional Research Service (CRS) memo, which was first posted by the Daily Caller, makes it clear that that this act actually limited the president’s authority relative to what it was before:
Congress - Statutes - President - Authorities - Declaration
By 1973, Congress had enacted over 470 statutes granting the President special authorities upon the declaration of a “national emergency,” but had imposed no substantive or procedural limitations on either the President’s discretion to declare an emergency or the duration of such emergencies. After a Special Committee of the Senate concluded in a 1973 report that the President’s crisis powers “confer[red] enough authority to rule the country without reference to normal constitutional process,” Congress enacted the NEA in 1976 to pare back the President’s emergency authorities.
But if you look at the text of the NEA, the only substantive burdens it placed on the president during such a declaration are to articulate which statue he is using, publish the proclamation in the federal register, and transmit to Congress all relevant regulations and expenditures under such declaration. It also forces the president to renew the declaration every year and authorizes Congress to disapprove of the declaration with a two-thirds vote in both houses. In other words, it mandated more transparency on the president relative to our prior history, but never imposed upon him legally enforceable conditions for determining whether the...
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