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What Presidential Powers Trump Has During A National Emergency

AUDIE CORNISH, HOST:

In his announcement today declaring a national emergency, President Trump repeatedly mentioned that previous presidents have called national emergencies.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT DONALD TRUMP: From 1977 or so, it gave the presidents the power.

CORNISH: Well, actually, it was 1976 when Congress passed the National Emergencies Act that this presidential declaration entered its modern form. That act was intended to rein in presidential powers that had been accumulating over time.

Our next guest has written that, quote, "by any objective measure, that law has failed." Liza Goitein is an expert on emergency powers at the Brennan Center for Justice. She's also written a piece in The Atlantic titled "What The President Could Do If He Declares A State Of Emergency." Welcome to the program.

LIZA GOITEIN: Thanks very much for having me.

CORNISH: So now that the president has declared a state of emergency, based on your understanding of the law, does the current declaration meet the requirements of the statute?

GOITEIN: All that the president has to do to declare a national emergency is to sign an executive order that states that he is declaring a national emergency and publish that order in the Federal Register - that's it. He doesn't have to explain why he's declaring emergency. He really just has to sign a piece of paper in order to activate the emergency powers that he has access to under a national emergency.

CORNISH: Can we talk about what the new actions and powers are that would be available to President Trump now that he has made this declaration?

GOITEIN: When the president declares a national emergency, he has access to powers contained in more than a hundred different laws that Congress has passed over the decades. And those laws basically represent Congress's best guess as to powers that the president might need in an emergency, in a situation where Congress didn't have time to act. In this instance, the president is looking at laws that allow the secretary of Defense to move money around within the department during national emergencies.

CORNISH: So we mentioned the National Emergencies Act in our introduction. Can you talk about what that law aimed to do?

GOITEIN: The law was intended to rein in the president's use of national emergencies by requiring the president to renew emergencies every year - so they would expire if he didn't renew them - and by giving Congress the authority to vote to terminate a state of emergency. Now, originally, Congress could do that by passing a concurrent resolution that the president didn't have to sign. But the Supreme Court held that these legislative vetoes, as they were called, were unconstitutional. So that's been changed.

Now Congress has to pass a joint resolution that the president has to sign. And if the president vetoes it, as he's likely to do, then Congress has to muster a veto-proof supermajority in order to terminate the state of the emergency.

CORNISH: What are the risks of the executive branch having this kind of power?

GOITEIN: The risks are that these laws are - some of them - are incredibly potent in terms of what they allow. In this case, we're talking about moving money within the Department of Justice to do something that Congress really doesn't want the president to do. That's bad enough. But there are powers here that would allow the president to shut down communications facilities, radio stations, to freeze Americans' bank accounts and seize their assets.

There are powers that allow the president, believe it or not, to suspend the prohibition on government testing of chemical weapons and biological agents on unwitting human subjects. So it's really extraordinary what some of these powers would allow. And if it's the case that the president can simply make up an emergency anytime he wants in order to gain access to those powers, then we're in real trouble.

CORNISH: That's Liza Goitein from the Brennan Center for Justice. Thanks for speaking with ALL THINGS CONSIDERED.

GOITEIN: Thanks again for having me. Transcript provided by NPR, Copyright NPR.