By Samuel Weitzman
As amended after the Supreme Court’s decision in Immigration & Nationality Services v. Chadha, the National Emergencies Act (NEA) vests the President with crisis powers that cannot be terminated or taken away even by majorities in both Houses of Congress. President Donald Trump’s 2019 declaration of a “national emergency” at the southern border of the United States as a pretext to secure funding for his border wall with Mexico threw into sharp relief the perils and shortcomings of this imbalanced arrangement. This Note argues first that the President lacks any inherent emergency powers; any such powers that might exist belong to Congress and are within Congress’ discretion to delegate to the President. In turn, this Note contends that the post-Chadha change to the emergency termination procedure undermined the statute’s basic efficacy in service of formalist constitutional theory. Under a revisionist, functionalist reading of Chadha, the original emergency termination procedure was constitutionally permissible as a political legislative veto. Alternatively, the recently proposed ARTICLE ONE Act would help to return the NEA to its original role of constraining executive use of emergency authorities.