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Jennifer Rubin writes in the Washington Post that:

[the US President's] declaration of an emergency can be overridden by a simple majority of both houses

Is it true that a presidential declaration of emergency in the US can be overridden by simple majorities of both houses, i.e. the US House of Representatives and the US Senate?

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  • 16
    This would be better on Politics.
    – DJClayworth
    Jan 29, 2019 at 15:17
  • 29
    This would be better on Law.
    – jwodder
    Jan 29, 2019 at 15:23
  • It's actually kinda scary that this is on Skeptics. What kind of democracy would give unrestrained power to a single leader like that? Of course there are ways to override it with some kind of majority within the government. If there aren't we call it a dictatorship.
    – Kevin
    Jan 31, 2019 at 16:53
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    @Kevin, except the answer to this question appears to be "No, it needs supermajorities in both chambers of Congress" - so while it's not unrestrained, that power rests with the executive.
    – Chris F
    Feb 1, 2019 at 21:00
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    @Kevin In english discussion of voting schemes, "Simple majority" generally means "50%+1" as opposed to a "supermajority" such as 60%, or 2/3rds, or soem amount higher than a simple majority. The formula is simple in all these cases. Translate "simple" to "bare" to understand the idiom correctly.
    – David Siegel
    Mar 4, 2019 at 6:13

3 Answers 3

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Is it true that a presidential declaration of emergency in the US can be overridden by simple majorities of both houses, i.e. the US House of Representatives and the US Senate?

In theory, yes. In practice, probably not. In theory, the President could agree with Congress that the emergency is over. In practice, the President would likely object the resolution and send it back to Congress with his veto. In that case, it would take a 2/3 majority in both houses to override the veto.

As originally written, the National Emergencies Act of 1976 explicitly allowed a simple majority in both houses of Congress to terminate a Presidential declaration of an emergency. From https://www.govtrack.us/congress/bills/94/hr3884/text (emphasis mine),

SEC. 202. (a) Any national emergency declared by the President in accordance with this title shall terminate if —

  1. Congress terminates the emergency by concurrent resolution ; or

  2. the President issues a proclamation terminating the emergency.

This simple majority override ran into a severe problem with Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), which addressed a case concerning a law that allowed a legislative veto by a single house of Congress. The 7-2 Supreme Court decision on that case very broadly ruled unconstitutional not just that particular law but also virtually all other attempts by Congress to thwart by legislative veto what is very explicitly in the Constitution. As a result, Congress in 1985 modified the termination procedures of the National Emergencies Act to read (emphasis mine)

§1622. National emergencies
(a) Termination methods
Any national emergency declared by the President in accordance with this subchapter shall terminate if—

  1. there is enacted into law a joint resolution terminating the emergency; or
  2. the President issues a proclamation terminating the emergency.

Concurrent resolutions are non-binding and are not subject to presidential veto. Joint resolutions on the other hand are subject to presidential veto.

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  • Also, the clause "there is enacted into law..." encompasses the entirety of the veto and overrule by 2/3 majority. I.e. the resolution is not "enacted into law" unless either signed by the president or enacted by 2/3 majority to overrule the president's veto.
    – GalacticCowboy
    Jan 29, 2019 at 15:45
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    @GalacticCowboy - The President can also neither ascent to nor veto the law within the proscribed ten days after the law is presented to him. If this happens and Congress remains in session, the act becomes law without his signature. The act does not become law if Congress does not remain in session for that ten day period. This is a pocket veto.
    – David Hammen
    Jan 29, 2019 at 16:54
  • Correct, I was merely pointing out that the clause places the resolution onto equal footing with any other bill - it must go through the Constitutional process to be enacted into law, whatever route that ultimately entails.
    – GalacticCowboy
    Jan 29, 2019 at 17:00
  • You'd think they'd find a better solution. For example, auto-time-limit the presidential "executive" power in some cases, and require periodic consent of congress to extend it. Then using internal rules, auto-table an enumerated "continued executive consent" and vote on it. That emulates "congress can overturn the executive power" with a simple majority by repeated applications of "negation".
    – Yakk
    Jan 30, 2019 at 16:14
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Yes and/or no From US Code Chapter 34: National Emergencies

§1622. National emergencies

(a) Termination methods

Any national emergency declared by the President in accordance with this subchapter shall terminate if—

(1) there is enacted into law a joint resolution terminating the emergency; or

(2) the President issues a proclamation terminating the emergency.

However, since it calls for a joint resolution that means it would be subject to a presidential veto. This could be overridden only through a two-thirds majority vote in both houses.

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – Sklivvz
    Jan 31, 2019 at 21:01
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The other good answers are based upon the assumption that the President's authority to declare a national emergency solely derives from law, rather than directly from the constitution.

Prior to the existence of the National Emergencies Act (1976), presidents already declared national emergencies.

For example 27 May 1941 Roosevelt issued a PROCLAMATION OF UNLIMITED NATIONAL EMERGENCY:

I, FRANKLIN D. ROOSEVELT, President of the United States of America, do proclaim that an unlimited national emergency...

So, if the President, apart from the later created National Emergency Act, has an authority to declare a national emergency, Congress would not have the authority to end the emergency.

According to Executive Power and Domestic Emergency: The Quest for Prerogative

The Western Political Quarterly Vol. 5, No. 4 (Dec., 1952), pp. 592-618:

executive prerogative has been a constitutional tradition since the founding of the Republic

and Lincoln and Truman:

[e]ach felt that he was exercising inherent executive power - prerogative - in combating a domestic emergency

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  • Lincoln knew full well that some of his actions would not withstand Constitutional scrutiny; however, the situation at the time was such that those actions' immediate effects -- prior to the application of said scrutiny -- achieved their immediate goals. I doubt that in more recent times (where Congress is actually present, and not largely off fighting in a civil war) there would be sufficient delay as to permit such reliance on latency.
    – Charles Duffy
    Jan 29, 2019 at 21:48
  • Congress will likely argue that the President had that power prior to the Act but that the Act restricted its use. Obviously, that would be a controversial position for Congress to take and the President would surely disagree. But arguments of that type have been accepted before where Congress has been permitted to place restrictions on how the judiciary or the President can exercise independent powers. The War Powers Act is an imperfect example.
    – David Schwartz
    Jan 29, 2019 at 21:49
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    @DavidSchwartz The outcome would depend upon what the president tried to do during the emergency. If there is a specific constitutional authority that is only for the president, like being commander in chief, then the congress would be wrong. But if it is like Youngstown (seizing property), then congress would be right.
    – DavePhD
    Jan 29, 2019 at 21:59
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    @DavePhD, I'm not seeing anything in the Constitution that gives the President the ability to declare an emergency, or otherwise exercise exceptional powers. (Suspension of the writ of habeas corpus is in Article I, which implies that it was intended as a power of Congress, not of the President.)
    – Mark
    Jan 30, 2019 at 0:15
  • @Mark Lincoln was ruled against for the exact reason you are saying, but he just ignored Justice Taney. However, in Youngstown a concurring opinion says "Others, such as Theodore Roosevelt, thought the President to be capable, as a "steward" of the people, of exerting all power save that which is specifically prohibited by the Constitution or the Congress." supreme.justia.com/cases/federal/us/343/579 Furthermore, the majority opinion says "The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself."
    – DavePhD
    Jan 30, 2019 at 0:56

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