Blame Congress for the national emergency

Congress brought this on itself. Long ago, it could have required the president to meet certain procedural or substantive requirements prior to unlocking this broad national-emergency authority. As I argue in a recently published paper, procedural constraints can come in many forms. Congress could require a president to consult with Congress with a proposal to proclaim a national emergency, and require congressional approval of the emergency. It could also require the president to include a justification of the circumstances that require the proclamation. Or Congress could require the submission of a complete record of the factual evidence that the proposed national emergency is based on. It could require documentation of the time-sensitive nature of the action, accompanied by documentation explaining why there is insufficient time for Congress to address the issue through legislation. Or Congress could provide for automatic termination of such emergencies after short periods of time, as opposed to defaulting to perpetual emergencies. These commonsense measures could go a long way in ensuring that presidents do not abuse this delegated authority.

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