David Frum: A state of unreality

Such process requirements are nothing new in the law. Congress, for example, mandates agencies to publish all proposed rule-makings and seek public comment prior to finalizing their rules. But Congress seems reluctant to impose meaningful hurdles on the president. And the application of these principles can be complicated by a president’s ability to claim confidentiality on the basis of national security.

In fact, although the media have focused of late on emergency powers, the same problems of vagueness, unaccountability, and non-transparency apply with equal force to the more than 2,000 references to “national security” that plague our laws. The statutory powers provided to a president to address “national security” threats are varied, extensive, and under-explored. Many of these provisions lie dormant, lulling our democracy into complacency. Yet a significant number of such powers are delegated to the president without any discernible limits.

One way to address the need for balance between secrecy and accountability would be to recognize that not all national-security threats are created equal. Congress could adopt a distinction between acute and chronic national-security threats and tailor the procedural constraints accordingly. Few would want to deny a president the ability to act with haste when an acute and unpredictable threat occurs. But a nimble presidency is not as necessary if the emergency is chronic and foreseen. By acknowledging a sliding scale of emergencies, Congress could adjust the degree of constraints in proportion to the imminence of the threat.

Instead of imposing some meaningful preconditions to a president’s exercise of this authority, Congress in its National Emergencies Act conditioned a president’s proclamation on only one requirement: that the president specify “the provisions of law under which he proposes that he, or other officers will act” (and that such proclamation be published in the Federal Register and transmitted to Congress). And even though the NEA requires a mandatory congressional review of the continuing viability of such emergencies every six months, as the Brennan Center has noted, there is no evidence of Congress ever conducting these reviews for any of the 58 national emergencies that have been declared prior to this proclamation.

Noah Rothman: Conservatives will live to regret this

Furthermore, Congress has imposed significant barriers to termination of such orders, as demonstrated by the joint-resolution procedure discussed above. It is therefore extremely easy for a president to declare an emergency, but extremely difficult for Congress to terminate one. Such asymmetry is particularly vexing given that the NEA was passed to end actually existing emergencies, not begin manufactured ones.