The text of the National Emergencies Act is clear.
“Not later than six months after a national emergency is declared,” it reads, “and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a concurrent resolution to determine whether that emergency shall be terminated.”
In other words, once then-President Jimmy Carter signed Executive Order 12170 in November 1979, invoking provisions of the law, both the House and the Senate should have considered the following May whether to terminate his action. Then they should have done the same in November 1980. And in May 1981. And in November 1981. And in every May and November since then, given that the emergency is still in effect.
But it hasn’t considered a resolution on Carter’s first emergency even once.
As more and more national emergencies have accrued, Congress has more and more often been supposed to review active emergency declarations. As recently as last November, Congress was supposed to have considered joint resolutions on no fewer than eight national emergency declarations, including that first one from Carter. In December, four more declarations were due for review.
That’s two months of the year.
By our count, using data from the Brennan Center for Justice, for the duration of every national emergency that has ever been declared, Congress is supposed to have conducted 1,094 reviews of those declarations.
How often has it done so? Well, we know that Tuesday the House and Senate considered a resolution that would terminate President Trump’s wall emergency — which, as the chart above shows, is the 32nd emergency currently active. So that’s one review, well ahead of the six-month schedule.
The Brennan Center’s Elizabeth Goitein, who wrote a definitive article on the law for the Atlantic this year, identified other examples in a phone call with The Washington Post.
Two other examples. Or, really, one and a half.
There was one time, she said, when then-Rep. George Miller (D-Calif.) introduced a resolution calling for the end to a national emergency related to Hurricane Katrina. Before that resolution could move out of committee, President George W. Bush revoked the emergency.
That was meant to be a vote ending the emergency akin to what Democrats introduced in the House in response to Trump’s declaration. Goitein wasn’t aware of any time at which Congress considered a vote on a joint resolution aimed at evaluating a national emergency.
“There was one time that the chair of a committee sent a letter to the majority leader basically saying the committee is okay with this emergency continuing,” she said. But “that’s not both houses meeting, so I would say that doesn’t count.”
We’re counting that as one-half of the mandate met.
One of the arguments being used against Trump’s national emergency declaration is that he is trying to seize power that the Constitution relegates to Congress. That Congress has consistently declined to exercise its power to review existing national emergencies — thereby empowering the president’s emergency declaration authority — makes that argument ring a bit hollow.