Emergency Powers
The National Emergencies Act of 1976 was supposed to fix exactly this problem, and it worked for about seven years. Congress could end an emergency by a two-house resolution, no presidential signature required. Then INS v. Chadha (1983) held that kind of legislative veto unconstitutional. Congress patched the statute in 1985 by requiring a joint resolution instead — which the president can veto. Ending an emergency now takes a two-thirds vote in both chambers. That threshold has been reached zero times in forty years, including on emergencies neither party defends anymore. The 1979 Iran emergency has been renewed by eight presidents, most recently for the 46th time; roughly four dozen national emergencies are active today, some dating to the Clinton administration, all still deputizing the sweeping economic powers of the International Emergency Economic Powers Act (asset freezes, transaction bans, trade prohibitions) with no serious prospect of a vote to end them.
Proposed Constitutional Amendment
§ 1
Any emergency declaration, emergency order, emergency regulation, emergency waiver, emergency spending authority, emergency enforcement action, or emergency suspension of ordinary law by the President or an executive officer shall expire thirty days after issuance unless Congress has approved its continuation by a recorded vote of both Houses.
Each approval shall expire not later than one year after the vote unless Congress approves continuation again by recorded vote.
No presidential signature or approval shall be required for an act of Congress that terminates, declines to continue, or narrows an emergency under this article, and no such act shall be subject to presidential veto.
§ 2
Every emergency declaration or order shall state in public writing: the statutory or constitutional authority invoked;
the specific facts supporting the emergency;
the rights and persons affected;
the spending or economic authority used, including any authority exercised under the International Emergency Economic Powers Act or successor law;
the duration;
the officers responsible for administration and enforcement;
the persons or territory covered;
the measurable condition for termination;
and the legal consequences of expiration.
Classified annexes may protect operational details, intelligence sources and methods, and sensitive security information, but the existence, scope, and legal authority of the emergency shall be stated in public and entered in the registry required by this article.
§ 3
Emergency powers may not be used to suspend or postpone a federal election, alter the rules of presidential succession, alter citizenship rules or create new classes of citizenship or noncitizenship, redirect appropriated funds contrary to the purpose for which Congress appropriated them, seize private property without prompt judicial review, censor or restrict domestic political speech, prohibit lawful criticism of government, punish lawful political association, or establish a permanent regulatory regime not otherwise authorized by ordinary legislation.
§ 4
Emergency powers may not continue after the measurable condition for termination stated under Section 2 has been met.
A resolution to terminate an emergency, introduced in either House by any Member, shall be entitled to expedited floor consideration and a final vote in both Houses within the period Congress prescribes by law, and such a resolution shall take effect under the terms of Section 1 without presentment to the President.
No emergency may be renewed, continued, or expanded by silence, appropriations language, committee report, classified notice, or the President's or Congress's failure to act.
§ 5
Any person substantially affected by an emergency order, either House of Congress, a Member of Congress authorized by that House, or a State may seek expedited judicial review in a court of competent jurisdiction.
Courts shall have the power to enjoin or set aside emergency action that exceeds the authority granted, lacks the findings required by Section 2, violates Section 3, or continues after expiration under Section 1 or Section 4.
No court shall decline such review on the ground that it presents a political question.
§ 6
Congress may by law authorize immediate temporary action by the President to repel an attack, respond to a natural disaster, protect life, restore essential government services, prevent imminent and catastrophic harm, or comply with a court order, pending compliance with Section 2.
Such action remains fully subject to the expiration, disclosure, and prohibited-use rules of this article.
§ 7
Congress shall have power to enforce this article by appropriate legislation, including legislation establishing expedited procedures for votes required under this article and creating the public registry required by the Implementation Schedule.
Implementation Schedule
Within 90 days after ratification, the President shall submit to Congress and publish a complete inventory of every emergency declaration, order, waiver, regulation, and authority in effect as of the date of ratification, including the statutory basis for each. Every emergency so listed shall expire 120 days after ratification unless Congress approves its continuation by recorded vote under Section 1. Congress shall establish, within 180 days after ratification, a public registry listing every declared emergency, its statutory basis, its scheduled expiration date, and the text of every order issued under it, updated continuously and available without charge.
Implementation notes
Implementation notes enter the public record when a released draft includes transition, enforcement, or severability instructions.