This seems like a major bug in checks and balances, since it requires 2/3 majority in both chambers to override the veto.

Doesn't this give the President power to do anything they wish, as long as they have support from only 1/6 of congress (1/3 of one chamber)?

(Actually it only requires 6.4%, by total number of representatives, since Senate is smaller than House.)

That seems like it gives even a small minority party dictatorial powers.

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    "Why" questions are hard to answer because they are vague. Are you asking "what sequence of decisions led to this outcome?" or are you asking "what are the principled arguments that make this decision reasonable?" or what? Can you clarify the question? – Eric Lippert Mar 16 at 14:11
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    I think the issue is that (a) everyone recognized the need to lift red tape in an emergency and (b) no one thought a president would declare national emergencies just to further agendas that had not received proper support. – Cliff AB Mar 16 at 17:07
  • @EricLippert ""what sequence of decisions led to this outcome?" or are you asking "what are the principled arguments that make this decision reasonable?"" Why is X allowed probably asks for the later. For the former, I would rather ask like "How can X...". – Trilarion Mar 19 at 16:46
  • @Trilarion: That illustrates my point. The question "what are the principled arguments..." presupposes that there are such arguments and that they have been made. But the answer to a "why?" question is more usually a series of unfortunate events. Suppose I asked "why did the leaders of Europe allow WWI to happen?" It's not like there was a principled debate for and against unnecessarily killing millions of people via mechanized warfare, and the "let's kill everyone" team won the debate. A good question does not presuppose a particular explanation. – Eric Lippert Mar 19 at 18:19
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    @EricLippert I understand that and I also have problems with "Why" questions. I wonder, how you would ask them instead? Something like "What justification if any has been given for X when X first happened" instead of "Why is X". That would make it into a history question. – Trilarion Mar 19 at 18:26

It is a bug in the process, but it's one that has been present (and un-addressed) for more than a quarter century.

When the National Emergencies Act was passed in 1976, it originally said that an emergency would be terminated if each house of Congress voted to do so. Thus a simple majority of both houses was supposed to be able to revoke the emergency.

However, in 1983, the Supreme Court held in INS v. Chadha that Congress couldn't pass laws which gave Congress a "legislative veto" over the President's actions. Thus, any law which included such a provision (like the NEA) lost it.

Without a specific provision in the NEA to create a special type of resolution that didn't need Presidential approval (which was now unconstitutional), it was changed in 1985 to the default "joint resolution" of Congress, which is a resolution passed by both houses and signed by the President, but which doesn't change the law (unlike a bill). This, in turn, means the President can veto it normally, which Congress can then override normally (if it has enough votes).

And yes, to change the law to remove the President's power also requires enough votes to override the veto. It's much easier for Congress to give away power than to reclaim it.

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    Downvoted because you say it's a bug and then go on to explain exactly why it isn't. – Kevin Krumwiede Mar 16 at 7:43
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    @KevinKrumwiede: There's nothing wrong with revising the constitution from time to time to overturn things SCOTUS did that lawmakers disagree with. It wouldn't be the first time it's done, either. See e.g. en.wikipedia.org/wiki/Chisholm_v._Georgia – Denis de Bernardy Mar 16 at 8:44
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    Has the National Emergencies Act itself ever been challenged in court (it sounds like it might be soon)? I know emergency declarations prior to the Act have been challenged, but not necessarily the Act itself. I would argue this Act gives away powers granted to Congress by the Constitution, which would make the Act itself unconstitutional. – barrycarter Mar 16 at 13:28
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    @KevinKrumwiede See the last sentence of the answer: "it's much easier for Congress to give away power than to reclaim it." That's why it's a bug, because this is a fundamental break in the checks & balances system that is supposed to stop one individual from slurping away power and becoming a dictator. Declaring an emergency is an important power to have, because convening hundreds of people takes time -- but I see no reason for an action that happens to be an emergency declaration not to be subject to strong oversight (just like every other Presidential action) when time allows. – Lightness Races in Orbit Mar 16 at 14:11
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    @KevinKrumwiede: I also agree that this is indeed a bug. They could just as easily have amended it to say something like "The emergency shall terminate automatically after six months, unless Congress by law extends it." Maybe also add a term forbidding the President from re-declaring a substantially identical emergency. That would have solved this problem without offending INS v. Chadha. – Kevin Mar 17 at 2:43

The President has that power because the authority to veto legislation is an enumerated power from the Constitution.

The conflict exists now because the Congress has surrendered an excess amount of legislative and pecuniary authority to the Executive Branch. the National Emergency Act gives the President some narrowed powers compared to the previous excesses, but it establishes a path through the delegated authorities Congress has released.


The theory seems to be (IMHO) that if the President tried to do something too outrageous, he would not be able to get the support of even 1/3 of the Senate. The Legislative Branch doesn't want its power to be totally usurped. So the broad scope of the NEA doesn't really give him carte blanche, the checks and balances are still there.

If most of the party members just vote the party line, that's a separate problem.

If the President couldn't veto this joint resolution, that would also be a failure of checks and balances. The President's veto power is a check on the power of the Legislative branch.

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    "The theory is that if the President tried to do something too outrageous, he would not be able to get the support of even 1/3 of the Senate." Somehow I doubt that this is the theory. Are there maybe some historic sources that agree that this is the real reason. – Trilarion Mar 19 at 16:48
  • I've clarified that this is my interpretation of it. – Barmar Mar 19 at 17:08

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