G.1. Declaration of Emergency

Congress may invoke emergency procedures when necessary, but only after formally declaring an emergency. Emergencies may only be called when circumstances exist that meet at least one of the following conditions:

• Public health emergency making in-person meetings or meetings in the usual venue unsafe;

• Occupation of the capital by a military force hostile to the duly constituted Congress;

• Disasters, such as fires or floods, which impede or prevent access to the usual places of congressional business; Other extraordinary circumstances that make ordinary procedures physically impossible or dangerous.

The declaration of emergency must:

• Be issued jointly by the Speaker of the House and the Leader of the Senate;

• Be accompanied by a public statement that describes the emergency and why ordinary procedures cannot be reasonably followed;

• Specify a start date and, if possible, an estimated duration of the emergency; Be transmitted to the Clerk of the House, the Secretary of State, and the Chief Justice of the Supreme Court; and

• Be made publicly accessible within four (4) hours of issuance.

A declaration of this type expires after sixty (60) days, unless both the Senate and the House vote by simple majority to renew for another sixty (60) days. Renewals must state the conditions that continue to justify the continuation of emergency status.

This clause empowers Congress to invoke emergency powers, but only under specific conditions and after following specific procedures.. It also lays out specific procedures that Congress has to follow to declare an emergency.

Why the specificity? For that matter, why have this provision at all? Although Congress adapted, the COVID-19 pandemic revealed its ill-preparedness for remote deliberation and voting. And what if the Capitol building burned to the ground or a terrorist attack struck Washington? How would Congress deal with that? Emergencies are unpredictable. The one we don’t imagine is the one that is most likely to happen. If we could predict what emergencies were coming, they wouldn’t be emergencies. But we can’t, so we need a system that lets Congress keep working when everything else breaks down.

Still, I’ve been crystal clear about my skepticism of emergency powers. Emergency powers tend to creep. Once granted, they rarely go away. For example, Proclamation 7463 was issued under the National Emergencies Act, and it is reviewed annually. That particular proclamation is still in effect in 2025. Why? What is the emergency now? There were terrorist enemies of the United States throughout the 1980s and 1990s, yet we managed well enough without perpetual emergency.

There are two essential things to note about my example. First, Proclamation 7463 has an annual sunset. Second, the President reauthorizes it every year. It’s not like I’m the first person to try to limit the extent of emergency powers, only to have some part of the government blithely blow past those safeguards. It would be up to the test of time to see if these safeguards would hold up any better, but it is important to try.

So, how is Congress limited in this provision?

• It only applies to the operation of Congress. It doesn’t authorize the suspension of rights or any similar measures.

• The leadership of both chambers must agree that a genuine emergency exists, and that emergency has to meet the requirements spelled out here.

• Congress is required to make a formal declaration of emergency. That preserves in the record the original justification for the emergency.

The declaration has to be published within four hours to the public at large, with copies filed in several locations to preserve the integrity of the declaration. This ensures accountability.

G.1(a). Judicial Review