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Law360 (April 24, 2020, 4:17 PM EDT) -- The New York City Bar Association has thrown its weight behind a bill that would curb some of the White House's emergency powers, citing the Senate's recent failures to block President Donald Trump's declaration of a national emergency along the southern border last year.
The New York City Bar Association has backed Article One, a bill that would curb the White House's emergency powers. (NYC Bar Association)
As the measure awaits congressional votes, the NYC Bar Association in a letter to Senate Majority Leader Mitch McConnell, R-Ky., on April 22 lauded the effort to give the legislative branch more power under the NEA.
"Concern has grown in Congress that the NEA is not serving as a bulwark against unchecked presidential authority," the 24,000-member legal society said in the letter.
Under current emergency laws, a joint resolution between Congress and the Oval Office is needed to call off a declaration. Article One would essentially flip the requirement, mandating that the legislative and the executive branches have to agree to keep an emergency declaration afloat before it expires, giving Congress more authority to manage the president's emergency powers.
"The Article One Act would provide an effective check on the exercise of emergency Authority," the association said. "It would achieve a balance between the Executive and Legislative Branches, providing the Executive with the flexibility to respond to legitimate emergencies, but only for a limited time unless Congress approved."
However, the bar association called on Congress to go even further in its letter, highlighting a report from the Brennan Center for Justice that identified more than 100 laws beyond the NEA giving emergency authority to the executive branch.
Under federal communications law, for example, the president has the power to close down or take over any radio station in an emergency, an ability the organization flagged as problematic.
"The President essentially would be able to take control over the country's communications Network," the association said. "It does not take much to imagine the import and scope of such an action, and the difficulties of ameliorating their ongoing impact once implemented."
The president also has the ability to suspend provisions regulating chemical and biological weapons, build unauthorized military projects and curtail agricultural exports, all outside of the NEA, according to the Brennan Center for Justice report.
The NYC Bar Association suggested Congress put together a committee to evaluate what checks may be needed to curb the White House's emergency authority across the board.
"The lack of substantial activity to restrain these authorities, and the rising concern in Congress as to the extent of such authorities, suggests a fuller review should be undertaken and recommendations made as to which statutes should be repealed or amended," the group said.
Representatives for McConnell and House Speaker Nancy Pelosi, D-Calif., who was copied on the bar's letter, did not immediately respond to requests for comment Friday.
--Additional reporting by Andrew Kragie and Kaitlyn Burton. Editing by Alanna Weissman.
For a reprint of this article, please contact reprints@law360.com.
