Many of their recommendations are sound and reasonable.
The NYU Brennan Center for Justice recently released a substantial report titled “Seven Solutions to Rein In Abuses of Executive Power.” The Brennan Center sits noticeably to the left on the political spectrum. Yet I find myself largely in agreement with the majority of its recommendations here. It is evident that the executive branch has grown too powerful, and it deserves a reduction. I am especially supportive of the thorough discussion on limiting emergency powers:
With only a signature, presidents can declare a national emergency and unlock special authorities drawn from more than 130 statutory provisions. These authorities range from the seemingly minor to the nearly dictatorial, including the ability to shut down or seize communications networks, freeze the financial assets of Americans, and regulate domestic transportation. They are designed for sudden, fast-moving crises that Congress cannot respond to quickly or with sufficient flexibility. Yet presidents from both parties have stretched the meaning of “emergency” far beyond reasonable limits, enabling them to draw from an expanding stockpile of statutory authorities with few genuine safeguards.
There are presently 51 active states of emergency, and the longest-running one has endured for 47 years.10 Any emergency that persists across generations is, by definition, not an emergency; it becomes a problem that can be handled through ordinary lawmaking. Nevertheless, presidents have used emergency powers to sidestep Congress and advance their policy aims unilaterally.11
The National Emergencies Act once permitted Congress to terminate emergencies with a simple majority vote and without the president’s signature. But the Supreme Court struck down that mechanism, 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 curb 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 publish detailed reports on their uses of emergency powers. Proposals along these lines have enjoyed broad bipartisan support, with versions of these reforms overwhelmingly advancing out of the pertinent House and Senate committees in 2024.13
Additionally, Congress should amend particular emergency statutes whose sweeping delegations of authority and insufficient safeguards render them prone to abuse. A foremost concern is the International Emergency Economic Powers Act, the most frequently invoked presidential emergency authority.14 Sanctions imposed under this law can amount to a “financial death sentence” lasting years or even decades.15 Although the Supreme Court blocked Trump’s attempt to use the statute to impose global tariffs, the door remains open for other abuses.
I wholeheartedly agree, and have previously advocated similar reforms. Brennan is correct that IEEPA should be tightened. While the Supreme Court did rule (in a case I helped litigate) that IEEPA cannot be used to impose tariffs, it still grants a great deal of problematic authority.
I would add, as I did in this article, that invoking emergency powers should be subject to nondeferential judicial review, ensuring they are used only in genuine emergencies and not in sham ones. Congress would do well to amend the relevant emergency statutes to make explicit that such nondeferential review is available.
I also strongly support Brennan’s recommendations to restrict domestic military use. The Supreme Court did strike down Trump’s attempts to federalize the National Guard on spurious pretexts; the Ninth Circuit recently affirmed that ruling by rejecting the administration’s expansive definition of what constitutes a “rebellion” warranting federalization. Yet, as the Brennan report indicates, the potential for abuse remains, particularly with regard to the Insurrection Act.
I likewise endorse the Brennan report’s call for constitutional amendments to strip presidential immunity from criminal liability for acts performed in office, and to bar presidents from pardoning crimes committed by members of their inner circle—family members and senior members of the administration—those who were convicted of crimes ordered by the president or carried out on the president’s behalf.
While I doubt these amendments will gain traction, given the formidable difficulty of amending the Constitution, the proposed reforms to emergency powers and to the domestic use of the military can be enacted through ordinary legislation. In some cases, stronger judicial review under current law and constitutional provisions could also help.
I do have a few points of disagreement with the report. For instance, it is not entirely clear to me that the Supreme Court’s ruling in Trump v. Slaughter extends as far as the authors suggest. The scope of that decision remains unsettled. Among other things, it is unclear how broad the ruling is for various federal agencies and how to reconcile it with Trump v. Cook, decided on the same day. I also fear they may overestimate Slaughter’s impact, since most federal agencies are already constrained in practice by legal limits on the president’s power to remove their leadership.
I would also have liked to see more acknowledgment that reducing executive overreach ultimately requires reining in the overall reach of federal power. It is virtually impossible to have a federal government that regulates nearly every facet of life while simultaneously delegating vast—and often dangerous—discretion to the executive branch.
That noted, the majority of the Brennan Center’s recommendations are sound. I hope future Democratic administrations and members of Congress will act on them.
For those tallying the score, it is worth noting that Elizabeth Goitein, a Brennan Center emergency-powers expert and one of the report’s authors, has long criticized the misuse of emergency powers by administrations on both sides of the aisle. For instance, she condemned President Biden’s effort to employ emergency powers to justify sweeping student loan forgiveness. I shared that view as well.
