STEVE INSKEEP, HOST:
President Trump has used emergency declarations more often than other presidents have. He claimed a national emergency gave him the power to raise tariffs and then lower them and then raise them, sometimes daily. Courts have ruled Trump is exceeding his power and appeals continue, but presidents can claim emergency powers. We learned that from Elizabeth Goitein of the Brennan Center for Justice, a progressive law and policy organization. Her study of emergency powers has affected her health.
ELIZABETH GOITEIN: My dentist has given me a hard time for years because I grind my teeth a lot, and I always forget to wear my mouth guard. And then he saw me on - I think it was PBS NewsHour talking about emergencies and emergency powers. And the next time I came in, he was incredibly apologetic. He said, I'm so sorry. I understand why you grind your teeth. It is OK.
INSKEEP: OK. So what is it about the topic of emergency powers that would make you grind your teeth?
GOITEIN: Well, emergency powers are a little bit scary. The entire purpose of them is to give the president a degree of legal leeway that Congress does not think would be appropriate during nonemergency times. And when the president declares a national emergency, that unlocks powers that are contained in about a hundred and fifty different provisions of law.
INSKEEP: A hundred and fifty different provisions of law, such as what?
GOITEIN: There is a provision from the Communications Act that dates back to 1942 that allows the president to take over or shut down radio or wire communications facilities. That provision was last invoked during World War II, when wire communications meant telephone calls or telegrams. Today, it could arguably be interpreted to allow the president to exert control over U.S.-based internet traffic.
INSKEEP: ...Or take over the television station and start broadcasting whatever you want. That's something a president could claim the power to do?
GOITEIN: At least on the face of this law. Now, there would be challenges. There would be First Amendment claims. One would hope that the courts would stand as a bulwark. But Congress did provide this sweeping power to the president with very few safeguards built in.
INSKEEP: What are some other things the president can do in an emergency?
GOITEIN: Another frightening law is the International Emergency Economic Powers Act. That's actually the law that President Trump invoked to try to impose worldwide tariffs. It's historically been used to impose economic sanctions on hostile foreign actors. But on its face, it also allows the president to freeze Americans' assets without any judicial approval or due process if the president deems the American to be contributing in some way to an unusual and extraordinary foreign threat.
INSKEEP: Who gets to define if an emergency is really an emergency?
GOITEIN: Well, unfortunately, the National Emergencies Act passed in 1976, and even though it was passed to rein in presidential use of emergency powers, it does not include a definition of national emergency, and it doesn't include any substantive criteria that have to be met. But there's another issue here. In the National Emergencies Act - as originally passed - Congress put in a very significant check, and that was that Congress could terminate an emergency declaration at any time by passing what was called a legislative veto, and that's a law that takes effect without the president's signature. The problem is that a few years later, the Supreme Court ruled that legislative vetoes are unconstitutional.
INSKEEP: Wait. So the Supreme Court destroyed the check on the president's power but left the president's power.
GOITEIN: Exactly.
INSKEEP: What is a change or reform that perhaps would cause you to grind your teeth less?
GOITEIN: (Laughter) After President Trump declared a national emergency in 2019 to secure funding for the border wall, members of Congress from both parties introduced legislation to reform the National Emergencies Act. And the primary legislation, which was actually introduced by Republican Senator Mike Lee, would require presidential declarations of emergency to expire automatically after 30 days unless Congress voted to approve the emergency declaration. Last September, in the middle of the campaign, committees in the Senate and the House both voted on this legislation. In the Senate, the vote was 13-1. In the House, the vote was unanimous. That's how popular this reform is. Unfortunately, like everything else, there is very little bipartisan legislation on anything. But I do think that for this particular reform legislation, it really is a question of when rather than if.
INSKEEP: Elizabeth Goitein with the Brennan Center for Justice, thanks so much.
GOITEIN: Thank you, Steve.
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