The Lawfare Podcast

Lawfare Archive: Bob Bauer and Liza Goitein on Emergency Powers Reform

Date: October 4, 2025
Guests: Bob Bauer (NYU School of Law), Liza Goitein (Brennan Center), Molly Reynolds (Brookings), Kevin Frazier (Host, St. Thomas University College of Law)

Episode Overview

This episode focuses on the scope and reform of presidential emergency powers, especially as wielded under the National Emergencies Act (NEA), the International Emergency Economic Powers Act (IEEPA), and the Insurrection Act. The conversation assesses how U.S. presidents have accumulated and used these powers, the failure of legislative checks, the resurgence of bipartisan reform efforts, and the risks posed by broad, unchecked executive authority. The guests provide historical context, analyze recent abuses, and detail legislative proposals designed to restore congressional oversight.

Key Discussion Points and Insights

Recent Congressional Activity on Emergency Powers ([03:27]-[08:49])

Molly Reynolds updates listeners on renewed efforts in Congress to reform emergency authorities, highlighting:

• Article 1 Act Moves Forward in the House ([03:27])

  • Passed out of committee by voice vote, suggests bipartisan momentum.
  • Shifts from reliance on "disapproval" resolutions (which require a veto-proof majority) to a requirement that emergencies must gain affirmative Congressional approval.

• Senate Considers the Republic Act ([07:12])

  • Also passed out of committee overwhelmingly (13-1).
  • Focuses on requiring Congressional approval for emergencies and mandates more transparency on presidential emergency actions.
  • Notable exchange during markup about how reforms would intersect with the President’s ability to impose tariffs under IEEPA.

• Bipartisan Opportunity ([06:35]; [08:49])

  • Reforms enjoy some support across parties, with lawmakers from both sides recognizing the underlying problem as one of unchecked executive power.

"It is true that in both chambers, these issues are things that have bipartisan support...which is promising." — Molly Reynolds ([06:35])

The Landscape of U.S. National Emergencies ([09:32]-[14:02])

Liza Goitein provides a primer:

• Proliferation of National Emergencies:
  • There are currently 43 national emergencies in effect ([09:32]).
  • IEEPA dominates: 40 of the 43 emergencies exist to impose foreign sanctions — these are rarely actual "emergencies."
  • Remaining emergencies address older or rare events (e.g., the 9/11 attacks, Cuban incidents from the 1990s, pandemic response, Southern border migration).
  • Many non-sanctions-related emergencies linger well past their practical relevance.

"We are still in a national emergency over Cuban attacks on US aircraft that happened in the 1990s... Congress should pass a law providing that authority rather than creating this permanent state of emergency..." — Liza Goitein ([12:42])

The Elusive Definition of “Emergency” ([13:12]-[16:36])

• No statutory definition: The NEA does not define “emergency,” leaving presidents wide discretion.
• Legislative intent and failure:
  • Congress wanted emergency restrictions to be handled in individual statutes but, in practice, such constraints are rare.
  • Result: Presidents pick when to declare an emergency with little substantive constraint.

"Congress wanted to rely on statutory restrictions that in practice don’t actually exist." — Liza Goitein ([14:58])

Congressional Checks That Failed ([17:00]-[19:23])

• Original Safeguards in NEA:

  • Annual renewal requirement (routinely bypassed).
  • Congressional termination by concurrent resolution (struck down by the Supreme Court in INS v. Chadha as unconstitutional).
  • Requirement for periodic Congressional review (completely ignored for decades).

• Impact of Safeguards' Collapse:

  • Presidents renew emergencies by default.
  • Congress can only reverse emergencies via normal legislation — needing a veto-proof majority.

Case Studies: Trump's Border Wall, Biden's Student Debt Relief ([26:37]-[31:10])

• Trump and the Border Wall:

  • Declared emergency after Congress refused border wall funding ([26:37]).
  • Emergency powers bypassed Congressional will; border crossings were historically low at the time.
  • Congress tried to end it, but Trump vetoed the termination resolution, and Congress failed to override.

• Biden and Student Debt:

  • Used COVID-19 emergency declaration to justify broad student loan relief — a long-standing issue, not an immediate emergency ([29:30]).
  • Congress did later end the COVID emergency, but only after the President had already announced its end.

"Every dictionary includes...that the situation has to be sudden and unforeseen and it has to require an immediate response. Back in 2019, border crossings...were near a 40-year low." — Liza Goitein ([27:00])

Unrestricted Presidential Access to Emergency Powers ([30:11]-[31:10])

• Once an emergency is declared, the President can tap into over 130 statutory emergency powers, many with little to no relation to the original declaration.
• Most of these powers have no required connection to the purported emergency's facts.

Reform Efforts: Article 1 Act and Its Limits ([33:22]-[41:56])

• Article 1 Act:

  • Requires ongoing Congressional approval for emergencies.
  • Sponsors: Mike Lee (R) and Richard Blumenthal (D), reflecting bipartisan intent ([33:22]).
  • Aims to set time limits, require specific reporting, and bring Congress back into oversight.

• IEEPA Exemption:

  • The Article 1 Act excludes IEEPA (the main sanctions-related emergency power) because of the huge administrative burden and separate due process/humanitarian concerns.
  • Reformers advocate for separate, more tailored IEEPA reforms.

"I do think it makes sense to reform IEEPA, but to do so separately...there should also be due process reforms, humanitarian reforms. So IEEPA really needs to [be] itself its own project, but it is a project that absolutely has to be undertaken." — Liza Goitein ([39:21])

Most Dangerous Emergency Powers ([35:39]-[39:12])

Liza Goitein outlines examples:

• Communications Act (1942): Allows the President to seize control of radio and (possibly now) internet communications.
• Powers under IEEPA: Technically can be used domestically to freeze assets or block people from jobs, housing, basics, if “linked” to foreign threats.
• TSA authorities over transportation.
• Very real potential for abuse — not just foreign policy, but basic civil rights and democracy.

The Insurrection Act: The Other Looming Threat ([41:56]-[48:59])

Bob Bauer and Liza Goitein warn:

• Outdated, vaguely worded law that empowers the president to deploy military domestically and suppress “unlawful combinations.”
• Historically abused and never meaningfully revised; almost no judicial or Congressional checks required.
• Poses a severe risk of misuse, especially in times of political crisis.

Key Reform Needs:

• Narrow definitions and time limits.
• Clearer constraints on permissible presidential action.
• Congressional and judicial review.

"Time and again, history has shown that an army turned inward can very quickly become an instrument of tyranny..." — Liza Goitein ([45:20])

Notable Quotes & Memorable Moments

• On Congressional Responsibility:

  • "This is an example of Congress, for a long period of time basically prepared to cede authority that it needs now to exercise to constrain presidential abuse of power." — Bob Bauer ([02:21])

• On the Persistence of Outmoded Emergencies:

  • "We are still in a national emergency over the 1979 Iranian hostage crisis." — Liza Goitein ([19:23])

• On the Systemic Nature of the Problem:

  • "It is just a fundamental institutional question of constraining executive authority and reviving Congress's sense of itself as an institution that has a role to play." — Bob Bauer ([24:28])

• On Recent Changes in Presidential Practice:

  • "That changed under the last two administrations..." — Liza Goitein ([26:37])

Timestamps for Key Segments

• [03:27]-[08:49] – Congressional reform developments: Article 1 Act, Republic Act, hearings and votes
• [09:32]-[12:42] – The state of current national emergencies
• [13:12]-[16:36] – The problem of not defining “emergency”
• [17:00]-[19:23] – Failed original NEA safeguards
• [26:37]-[31:10] – Trump’s and Biden’s controversial use of emergency powers
• [33:22]-[41:56] – Reform proposals, especially the Article 1 Act and why IEEPA isn’t included
• [35:39]-[39:12] – Examples of dangerous emergency authorities
• [41:56]-[48:59] – Insurrection Act’s risks and reform approaches

Conclusion

The episode emphasizes that unchecked emergency powers are an ongoing bipartisan risk to the U.S. constitutional order, not a tool limited to any one president or party. Both legislative and executive branches have overlooked their responsibilities, resulting in sustained (and often unrelated) stretches of emergency authority. Recent bipartisan reform efforts represent progress, but significant and tailored changes—especially to the NEA, IEEPA, and Insurrection Act—are needed to restore constitutional checks and prevent executive overreach.

"We’re talking about the ability for Congress to serve as a meaningful check against abuse. And there are abuses...that really could undermine democracy itself." — Liza Goitein ([39:12])