The Broader Problem of Rampant National Emergencies
Andrew Hyman

When the National Emergencies Act took effect in 1976, each national emergency was expected to be unilaterally revocable by Congress, but that expectation was dashed in 1983 in the case of INS v. Chadha.  Nevertheless, it is likely that a remnant of the original scheme of congressional revocation legitimately remains, even after Chadha.

The National Emergencies Act imposes an automatic one-year limitation on national emergencies. Congress can accept from the president notification of further one-year extensions. Each house of Congress probably can instead decide to not accept the extension notification, and thus Congress can allow the emergency to expire. If this extension mechanism would violate the principles described in Chadha then the courts should ignore the extension mechanism and uphold a one-year limitation.  But if the extension mechanism is consistent with Chadha then the courts should uphold the extension mechanism, and thus allow Congress to decide whether to accept delivery of a presidential notice attempting to extend an emergency for another year.

The same subsection of the U.S. Code that addresses joint resolutions (i.e. subsection “c”) also allows “either House to change the rules” to some extent, pursuant to its rulemaking authority. See 50 U.S.C. § 1622(c)(5).  Thus, each house of Congress is arguably free to decide that no purported notice delivered from the President, attempting to extend a national emergency on its anniversary, shall be accepted by that house of Congress unless and until that house of Congress decides to accept delivery.  If both houses exercise their rulemaking power in that way, they would potentially make it impossible for the President to “transmit to the Congress a notice stating that such emergency is to continue in effect after such anniversary” (per 50 U.S.C. § 1622(d)). The House of Representatives could easily change its rules in that way by simple majority, and the Senate could too unless it decides by simple majority to adhere to its supermajority rule.

The key here is the original meaning of the word “transmit,” in 50 U.S.C. § 1622(d):

Any national emergency declared by the President in accordance with this subchapter, and not otherwise previously terminated, shall terminate on the anniversary of the declaration of that emergency if, within the ninety-day period prior to each anniversary date, the President does not publish in the Federal Register and transmit to the Congress a notice stating that such emergency is to continue in effect after such anniversary.

Of course, I added the emphasis on that word.  Sometimes that word means “send” but sometimes it means convey.  The U.S. Code sometimes uses the word “transmit” to mean “deliver.”  The Constitution itself describes an instance of Congress preventing stuff from being transmitted (“the Congress by their Adjournment prevent its Return”).  Here is that full sentence:

If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

This language also implies that Congress cannot block a veto message from the President while it is in session. But I am not seeing similar language in the National Emergencies Act that disables Congress from blocking a message extending an emergency that would otherwise expire.

The two houses of Congress could individually take this step as to all emergencies, or only a certain category, and they could do so temporarily or permanently.  But even if they do not want to do any of those things, their ability to do so would reestablish a tight limit that — everyone has assumed — was eliminated by the Supreme Court in its perfectly reasonable Chadha decision.