Emergency Powers and the Erosion of Legislative Oversight

How has the National Emergenices Act been weakend by court rulings and congressional neglect?

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Published March 8th, 2026

Written by Sam Olson

The President’s ability to invoke special emergency powers represents a persistent tension within the United States constitutional framework. How can we balance presidential emergency powers in times of overreach, while maintaining the chief executive’s ability to respond quickly and completely to a genuine crisis? This tension peaked in the 1970s, following the discovery that a president may access dozens of antiquated, often unchecked, statutory emergency powers. At that time, President Richard Nixon considered using a Civil War-era emergency power to fund his Cambodian War campaign. The events of the early 70s made clear that the existing framework for emergency powers lacked meaningful constraints, compelling Congress to undertake a systematic review of the sources of such powers.

In 1973, Congress established the Special Committee on the Termination of the National Emergency to investigate outdated emergency powers given by Congress to the President over the previous half-century. According to the Senate, the creation of this committee was prompted by Nixon's secret expansion of the Vietnam War into Cambodia without congressional authorization. In response, Congress drafted a proposal to prevent the use of congressionally appropriated funds from being dispatched to Cambodia. In rebuttal, Secretary of Defense Melvin Laird indicated that if Congress terminated funding, the Pentagon would use emergency powers from the Feed and Forage Act of 1861 to fund the Cambodia campaign. The Feed and Forage Act grants the U.S. Cavalry authority to purchase horse feed if congressional funding has dried up while Congress is not in session. The notion that a nineteenth-century statute designed for logistical emergencies involving horses could serve as the legal basis for modern military operations demonstrated the dangerous, outdated and expansive risks of emergency powers.

The special committee’s extensive research, as well as concurrent investigations such as Watergate, motivated Congress to restructure emergency authority. In 1975, the House of Representatives introduced what became the National Emergencies Act. President Ford signed the act into law on September 14, 1976. The NEA terminated four existing emergencies, instituted regular reporting requirements and established a critical legislative veto permitting Congress to terminate emergency declarations with a simple majority vote in both chambers, according to Just Security.

The oversight established in the NEA, however, proved to be short-lived. In INS v. Chadha (1983), the U.S. Supreme Court ruled the legislative veto unconstitutional, as described by Oyez. This decision rendered one of Congress’s most effective oversight tools void. Since Chadha, termination of an emergency requires a veto-proof or supermajority vote, which is nearly impossible in today’s hyper-polarized congressional climate.

Following Chadha, presidents from both political parties have leveraged emergency powers. In 2019, President Trump invoked emergency powers to circumvent Congress and reallocate approximately $7 billion toward the southern border wall. Congress passed two proposals to terminate the state of emergency, but Trump vetoed both, and the votes to override failed. Similarly, President Biden cancelled an estimated $190 billion in student loan debt using emergency powers, according to AmericanProgress. However, the Supreme Court later ruled in Biden v. Nebraska that the student loan forgiveness under the HEROES ACT of 2003 was unconstitutional, according to Oyez.

In response to these actions, lawmakers recently have proposed reforms, such as the ARTICLE ONE Act and the REPUBLIC Act. The ARTICLE ONE Act, proposed by Sen. Mike Lee (R-UT), “would automatically end all future emergency declarations made pursuant to the NEA after 30 days unless Congress affirmatively votes to extend the emergency.”

Similarly,  the REPUBLIC Act, proposed by Sen. Rand Paul (R-KY), restores the balance of power by significantly limiting the president’s ability to exercise statutory emergency authorities without congressional approval. The act works by capping an initial emergency declaration at 30 days unless Congress enacts an approval and limiting subsequent renewals to 90-day periods, with a five-year hard limit on any single emergency. This act also limits certain existing presidential powers by requiring congressional approval before invoking the Insurrection Act, eliminating the authority to seize U.S. communications infrastructure, demanding due process protections for U.S. persons sanctioned under IEEPA and mandating full transparency by requiring the disclosure of Presidential Emergency Action Documents to Congress.

Importantly, the crisis surrounding emergency powers is not solely attributable to Chadha. As Director of American Governance Policy at the Foundation for American Innovation Soren Dayton emphasizes, Congress failed to utilize the oversight tools provided by the NEA even before the legislative veto was struck down, as described on Prototyping Politics. Between 1976 and 1983, Congress never conducted the periodic reviews of ongoing emergencies the act required. Dayton argues that had Congress conducted proper oversight, when it came time for Chadha, saying, “It would have been overturning not just a theoretical principle but a vibrant practice.”

Today, the consequences of the NEA’s failure are now on the legislative agenda, with new proposals seeking to close the gap created by the Chadha ruling. The current debate focuses on the loss of legislative veto power under the NEA and whether Congress failed to utilize the NEA’s review tools effectively. A solution must address both concerns of legal structure and congressional negligence. Legislative efforts like the ARTICLE ONE Act and the REPUBLIC Act aim to restore constitutional balance and replace the defunct legislative veto with a requirement for affirmative congressional approval. These proposals represent an ongoing and critical effort to ensure the Executive Branch can swiftly address crises while protecting the fundamental principle of legislative checks on indefinite and unchecked presidential emergency rule.

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