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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

EL PASO COUNTY, TEXAS, and
BORDER NETWORK FOR HUMAN
RIGHTS,
Plaintiffs,
vs.
DONALD J. TRUMP, President of the
United States, in his official capacity, et
al.,
Defendants.

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Civil Action No. 3:19-cv-66-DB
BRIEF OF THE BRENNAN CENTER FOR
JUSTICE AS AMICUS CURIAE IN
SUPPORT OF PLAINTIFFS’ MOTION
FOR SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, A PRELIMINARY
INJUNCTION

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TABLE OF CONTENTS
INTEREST OF AMICUS CURIAE ................................................................................................. 1
INTRODUCTION AND SUMMARY OF ARGUMENT ............................................................. 1
ARGUMENT .................................................................................................................................. 2
I.

Proclamation 9844 Is Contrary to the Congressional Intent Behind the NEA ................. 2

II.

Proclamation 9844 Is Unprecedented in the History of National Emergencies Act
Implementation .................................................................................................................. 8

III. Upholding Proclamation 9844 Would Create a Dangerous Precedent ........................... 15
CONCLUSION ............................................................................................................................. 18

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TABLE OF AUTHORITIES
CASES
Al Haramain Islamic Foundation, Inc. v. U.S. Dept. of the Treasury,
686 F.3d 965 (9th Cir. 2012) ........................................................................................... 17
Alvarez v. Trump, No. 19-cv-00404 (D.D.C. dismissed Apr. 23, 2019) .................................... 2, 3
I.N.S. v. Chadha, 462 U.S. 919 (1983). .......................................................................................... 8
Kindhearts for Charitable Humanitarian Dev. v. Geithner,
647 F.Supp.2d 857 (N.D. Ohio 2009) ............................................................................. 17
Korematsu v. United States, 323 U.S. 214 (1944) .......................................................................... 3
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) .................................................... 3
CONSTITUTION AND STATUTES
7 U.S.C. § 5712 ............................................................................................................................. 18
10 U.S.C. § 712 ....................................................................................................................... 16, 17
10 U.S.C. § 2808 ..................................................................................................................... 2, 7, 8
40 U.SC. § 314 .............................................................................................................................. 18
47 U.S.C. § 606 ............................................................................................................................. 16
49 U.S.C. § 114 ............................................................................................................................. 18
50 U.S.C. § 4309 ........................................................................................................................... 18
50 U.S.C. § 1622 ......................................................................................................................... 6, 8
50 U.S.C. § 1621 ............................................................................................................................. 6
50 U.S.C. § 1631 ............................................................................................................................. 6
50 U.S.C. § 1641 ............................................................................................................................. 6
Department of Defense Appropriations Act, Pub. L. No. 102-396, 106 Stat. 1876 (1992) ......... 11
Department of Defense Appropriations Act, 2018, H.R. 695, 115th Cong. (2017) ..................... 14
End the Shutdown and Secure the Border Act, S.Amdt. 5 to Supplemental Appropriations
Act, 2019, H.R. 268, 115th Cong. (2019) ....................................................................... 14
International Emergency Economic Powers Act, Pub. L. No. 95-223, 91 Stat. 1626 (1977)
(codified as amended at 50 U.S.C. §§ 1701 et seq.)...................................... 1, 2, 8, 10, 17

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International Emergency Economic Powers Enhancement Act, Pub. L. No. 110-96,
121 Stat. 1011 (2007) ...................................................................................................... 11
National Emergencies Act of 1976, Pub. L. No. 94-412, 90 Stat. 1255 (1976)
(codified as amended at 50 U.S.C. §§ 1601-1651) ................................................... 1, 5, 6
Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, 102 Stat. 1107
(1988) .............................................................................................................................. 11
Pub. L. No. 99-93, § 801, 99 Stat. 407 (1985) .............................................................................. 11
Trading With the Enemy Act, Pub. L. No.65-91, ch. 106 § 5(b)(1), 40 Stat. 415 (1917)
(codified as amended at 50 U.S.C. § 4305(b)(1)) ............................................................. 9
USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) ..................................... 11
U.S. Const. art. 1, § 9, cl. 2 ............................................................................................................. 3
U.S. Const. art. 1, § 8, cl. 15 ........................................................................................................... 3
Executive Orders and Proclamations
Exec. Order No. 12444, 48 Fed. Reg. 48215 (Oct. 14, 1983) ................................................ 11, 14
Exec. Order. 12722, 55 Fed. Reg. 31803 (Aug. 3, 1990) ............................................................. 12
Proc. No. 6867, 61 Fed. Reg. 8843 (Mar. 1, 1996)....................................................................... 12
Proc. No. 6491, 57 Fed. Reg. 47553 (Oct. 14, 1992) ................................................................... 12
Proc. No. 7463, 66 Fed. Reg. 48199 (Sept. 14, 2001) .................................................................. 12
Proc. No. 7924, 70 Fed. Reg. 54225 (Sept. 8, 2005) .................................................................... 12
Proc. No. 8443, 74 Fed. Reg. 55439 (Oct. 23, 2009) ................................................................... 12
Proc. No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019) ........................................... 1, 8, 13, 14, 15, 18
Other Legislative Authorities
120 Cong. Rec. S. 15784-86 (daily ed. Aug. 22, 1974) .................................................................. 4
121 Cong. Rec. H.R. H8325-H8341 (daily ed. Sept. 4, 1972) ....................................................... 5
165 Cong. Rec. H.R. H2105 (daily ed. Feb. 26, 2019) ................................................................... 8
165 Cong. Rec. S1856 (daily ed. Mar. 14, 2019) ........................................................................... 8
165 Cong. Rec. H2814 (daily ed. Mar. 26, 2019) ........................................................................... 8
S. 977, 94th Cong. (1975) ............................................................................................................... 6

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S. Comm. on Government Operations and the Spec. Comm. on National Emergencies and
Delegated Emergency Powers, The National Emergencies Act (Public Law 94-412),
Source Book: Legislative History, Text, and Other Documents (1976) ................ 4, 5, 6, 7
S. Rep. No. 93-1170 (1974) ............................................................................................................ 5
S. Rep. No. 94-1168 (1976) ............................................................................................................ 7
S. Res. 242, 93rd Cong. (1974) ........................................................................................................ 4
OTHER AUTHORITIES
A Guide to Emergency Powers and Their Use, Brennan Ctr. (Jan. 23, 2019),
https://tinyurl.com/y78jkjvp .............................................................................. 7, 9, 12, 16
John Burnett, Arrests for Illegal Border Crossings Hit 46-Year Low, NPR
(Dec. 5, 2017, 11:10 AM), https://tinyurl.com/y84xapfl ................................................ 13
CBP Enforcement Statistics FY2018, U.S. Customs and Border Protection,
https://tinyurl.com/y9c4c6ft ............................................................................................ 13
Constitutions Containing Emergency Provisions, Constitute, https://tinyurl.com/y6op33d7 ........ 3
Thomas E. Cronin, A Resurgent Congress and the Imperial Presidency, 95 Pol. Sci. Q. 209
(1980) ................................................................................................................................ 4
Declared National Emergencies Under the National Emergencies Act, Brennan Ctr.
(Feb. 4, 2019), https://tinyurl.com/yy3betsb ............................................... 8, 9, 10, 12, 17
Karoun Demirjian, With vote to end U.S. involvement in Yemen’s war, House sets up Trump’s
second veto, Wash. Post, Apr. 4, 2019, https://tinyurl.com/y4fhw9aq ........................... 17
Laura K. Donohue, Constitutional and Legal Challenges to the Anti-Terrorist Financing
Regime, 43 Wake Forest L. Rev. 643 (2008) .............................................................. 9, 10
Emergency Definition, English Oxford Living Dictionaries,
https://tinyurl.com/y5g2pwq7 ................................................................................... 12, 13
Emergency Definition, Merriam-Webster Online Dictionary,
https://tinyurl.com/yxw5fncq .................................................................................... 12, 13
Excerpts from Trump’s Interview with the New York Times, N.Y. Times, (Feb. 1, 2019),
https://tinyurl.com/y9gsosk4 ........................................................................................... 15
Dan Farber, Using Emergency Powers to Fight Climate Change, Legal Planet (Jan. 14, 2019),
https://tinyurl.com/y2qgnplw .................................................................................... 17, 18
Louis Fisher, Congressional Abdication: War and Spending Powers,
43 St. Louis U. L.J. 931 (1999). ...................................................................................... 17
Elizabeth Goitein, Trump’s Hidden Powers, Brennan Ctr. (Dec. 5, 2018),
https://tinyurl.com/y5484ngl ....................................................................................... 9, 16
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Elizabeth Goitein, The Alarming Scope of the President’s Emergency Powers, Atlantic,
Jan./Feb. 2019.................................................................................................................. 16
Alberto R. Gonzalez, Attorney General, Office of Legal Counsel, Legal Authorities
Supporting the Activities of the National Security Agency Described by the President
(Jan. 19, 2006), https://tinyurl.com/y2f9lq26 .................................................................... 3
Elaine Halchin, Cong. Research Serv., 98-505, National Emergency Powers (2019),
https://tinyurl.com/y3mvekk3 ................................................................................... 3, 4, 6
Joel B. Harris and Jeffrey P. Bialos, The Strange New World of United States Export Controls
Under the International Emergency Powers Act,
18 Vand. J. Transnat’l L. 78 (1985) ................................................................................ 11
Tamara Keith, If Trump Declares an Emergency to Build the Wall, Congress Can Block Him,
N.P.R. (Feb. 11, 2019), https://tinyurl.com/y4vobv6m ..................................................... 9
Harold Hongju Koh, The National Security Constitution: Sharing Power After the
Iran-Contra Affair (Yale U. Press 1990) ......................................................................... 10
Gregory Korte, White House: States of emergency are just formalities, USA Today
(April 9, 2015), https://tinyurl.com/y4crdfmk................................................................. 10
Lawyer’s Comm. for Civil Rights of the S.F. Bay Area, The OFAC List: Due Process
Challenges in Designation and Delisting (July 2014), https://tinyurl.com/yxwzbsz6.... 17
Memorandum from Jay Bybee, Assistant Attorney General, Office of Legal Counsel, to Alberto
R. Gonzalez, Counsel to the President, Re: Standards of Conduct for Interrogation
under 18 U.S.C. §§ 2340-2340A (Aug. 1, 2002), https://tinyurl.com/y39bhwbu ............. 3
Alex Nowrasteh, The Murder of Mollie Tibbetts and Illegal Immigrant Crime: The Facts,
Cato Institute (Aug. 22 2018), https://tinyurl.com/y5boc9me ........................................ 13
David W. Opderbeck, Does the Communications Act of 1934 Contain a Hidden Internet Kill
Switch?, 65 Fed. Comm. L.J. 1 (2013) ............................................................................ 16
Saikrishna Prakash, The Imbecilic Executive, 99 Va. L. Rev. 1391 (2013) ................................... 3
Remarks by President Trump Before Marine One Departure, White House (Jan. 10, 2019),
https://tinyurl.com/yycew5dk .......................................................................................... 15
Remarks by President Trump in Meeting on Human Trafficking on the Southern Border, White
House (Feb. 1, 2019), https://tinyurl.com/y5ghp3eh....................................................... 15
Remarks by President Trump on the National Security and Humanitarian Crisis on our
Southern Border, White House (Feb. 15, 2019), https://tinyurl.com/y3jenqeu ........ 14, 15
Lori Robertson, Illegal Immigration Statistics, FactCheck.Org, (Jan. 9, 2019),
https://tinyurl.com/ybn5mr7s .......................................................................................... 13
George Sargent, Trump: I have the ‘Absolute Right’ to Declare a National Emergency if
Democrats Defy Me, Wash. Post (Jan. 9, 2019), https://tinyurl.com/y5f5eqwg ....... 14, 15
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Patrick A. Thronson, Toward Comprehensive Reform of America’s Emergency Law Regime,
46:2 U. Mich. J.L. Reform, 737 (2012) ............................................................................. 9
Jane C. Timm, Fact check: What’s a ‘national emergency’ and can Trump declare one to get
his wall?, NBC News (Jan. 4, 2019), https://tinyurl.com/ycxmurfn ............................... 14
Transcript: President Trump on “Face the Nation,” CBS News, (Feb. 3, 2019),
https://tinyurl.com/y8l38g72 ........................................................................................... 15
Donald J. Trump, Veto Message to the House of Representatives for H.J. Res. 46, White House
(Mar. 15, 2019), https://tinyurl.com/y6mlsn76 ................................................................. 8

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INTEREST OF AMICUS CURIAE 1
Amicus curiae, the Brennan Center for Justice at New York University School of Law
(“the Brennan Center”), is a not-for-profit, non-partisan think tank and public interest law
institute that seeks to improve systems of democracy and justice. The Brennan Center’s interest
in this case stems from an extensive research project it recently conducted on statutory
emergency powers and the National Emergencies Act (NEA). Based on this research, the
Brennan Center believes that Proclamation 9844—the President’s emergency declaration
regarding the southern border—is contrary to the original purpose of the NEA, represents a sharp
departure from past practice, and, absent judicial intervention, would open the door to
presidential misuse of dozens of highly potent emergency powers.
INTRODUCTION AND SUMMARY OF ARGUMENT
Congress enacted the National Emergencies Act of 1976 (NEA) to rein in presidential use
of statutory emergency powers. Although Congress purposely omitted a definition of “national
emergency,” the legislative history makes clear that Congress did not intend for the law to
provide an affirmative grant of limitless discretion. Moreover, the law was carefully designed to
ensure that presidential actions in this area would remain subordinate to Congress’s authority. A
declaration issued for the purpose of flouting Congress’s will on a question of policy, such as
President Trump’s Proclamation 9844, makes a mockery of Congress’s intent in passing the law.
Proclamation 9844 also represents a sharp departure from past practice in implementing
the NEA. Outside of emergency declarations invoking the International Emergency Economic
Powers Act (IEEPA), which must be viewed separately in light of IEEPA’s legislative history
and subsequent congressional actions, presidents have declared national emergencies only a
handful of times in the past 40 years. All of these declarations responded to events that were
sudden and unexpected—thus meeting one of the basic criteria for an “emergency,” under the
term’s plain meaning—and none sought to implement measures for which Congress had
1

No counsel for a party authored this brief in whole or in part, and no person other than
amicus and their counsel made a monetary contribution to its preparation or submission. This
brief has been prepared by a center affiliated with New York University School of Law, but does
not purport to present the school’s institutional views, if any.
1

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withheld funding. By contrast, official statistics show that there has been no sudden, unexpected
change in immigration patterns at the southern border. More important, the president has openly
acknowledged that his purpose in issuing the declaration was to sidestep Congress, which had
repeatedly refused to provide the funding he requested for a border wall. No president before
now has sought to use emergency powers to circumvent Congress’s explicit will and power of
the purse. Nor has any president been so transparent that he was using emergency powers simply
because he saw them as an expedient way to achieve a policy goal.
Allowing the emergency declaration to stand in this case could have far-reaching effects
outside the four corners of this case. It would give a green light to this president and future ones
to use emergency powers as a means of resolving policy disputes with Congress. The Brennan
Center has catalogued 123 such powers, many of which are far more sweeping and susceptible to
abuse than the one President Trump has invoked here. This Court should therefore intervene to
stop this abuse of emergency power and to prevent similar abuses from becoming the norm.
ARGUMENT
I.

Proclamation 9844 Is Contrary to the Congressional Intent Behind the NEA
Plaintiffs argue compellingly that Proclamation 9844 exceeds the president’s authority

under the NEA. Pls.’ Mot. Summ. J. 19-26, ECF No. 54. Based on their filings in other lawsuits
challenging Proclamation 9844, we anticipate that Defendants will argue in response that the
NEA provides the president with unlimited discretion to invoke emergency powers, even where
Congress has withheld support for the very action he wishes to take. See Defs. Mot. to Dismiss at
20-28, Ctr. For Biological Diversity v. Trump, No. 1:19-cv-00408 (D.D.C. Apr. 2, 2019), ECF
No. 12; Defs. Mot. to Dismiss at 20-28, Alvarez v. Trump, No. 19-cv-00404 (D.D.C. dismissed
Apr. 23, 2019), ECF No. 8. The legislative history of the NEA, however, strongly suggests
otherwise. It makes clear that the NEA was enacted to circumscribe, and to ensure congressional
control over, the president’s use of statutory emergency powers.
To understand the purpose of the NEA, it is necessary to briefly summarize the history

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of statutory emergency powers in the United States. Unlike most other countries’ constitutions,2
the U.S. Constitution does not provide the president with any explicit emergency powers. See
generally U.S. Const. art. II.3 Accordingly, from the time of the country’s founding, presidents
have relied on Congress to provide them with enhanced authorities in emergency situations.
Throughout the eighteenth and early nineteenth centuries, Congress periodically enacted laws
giving presidents standby authorities that they could use in their discretion during military,
economic, or labor crises. See Elaine Halchin, Cong. Research Serv., 98-505, National
Emergency Powers 1 (2019), https://tinyurl.com/y3mvekk3.
Beginning in World War I, a new procedure for invoking statutory emergency powers4
evolved. Presidents would declare a national emergency, and this declaration would give them
access to statutory authorities that would otherwise lie dormant. See Halchin, supra, at 1. This
system continues to this day. Before the enactment of the NEA, however, there was no
overarching statute regulating it. See id. There was little transparency or congressional oversight
with respect to the presidents’ use of emergency powers, and nothing to prevent states of
emergency from lingering indefinitely.
A review of current constitutions reveals that at least 178 countries’ constitutions have
provisions for emergency rule. See Constitutions Containing Emergency Provisions, Constitute,
https://tinyurl.com/y6op33d7 (last visited Apr. 25, 2019).
3
Those powers that could be considered “emergency powers” are given to Congress
under Article I, such as the power to suspend habeas corpus, see U.S. Const. art. 1, § 9, cl. 2, and
to call forth “the Militia” to “suppress Insurrections and repel Invasions.” U.S. Const. art. 1, § 8,
cl. 15.
4
Starting with the Civil War, claims of “inherent” emergency powers under Article II of
the Constitution became more common, and served as the basis for several extraordinary
exercises of emergency power in the twentieth century—including President Franklin Delano
Roosevelt’s internment of Japanese Americans during World War II, see Korematsu v. United
States, 323 U.S. 214 (1944), President Harry Truman’s seizure of steel mills during the Korean
War, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), and President George
W. Bush’s programs of warrantless wiretapping, see Alberto R. Gonzalez, Attorney General,
Office of Legal Counsel, Legal Authorities Supporting the Activities of the National Security
Agency Described by the President (Jan. 19, 2006), https://tinyurl.com/y2f9lq26, and torture, see
Memorandum from Jay Bybee, Assistant Attorney General, Office of Legal Counsel, to Alberto
R. Gonzalez, Counsel to the President, Re: Standards of Conduct for Interrogation under 18
U.S.C. §§ 2340-2340A (Aug. 1, 2002), https://tinyurl.com/y39bhwbu, after the attacks of 9/11.
Yet even as claims of inherent emergency authority gained traction, legislative grants of
emergency power continued to multiply. See Saikrishna Prakash, The Imbecilic Executive, 99
Va. L. Rev. 1391, 1367-68, 1425 (2013).
2

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In the 1970s, several scandals involving executive branch overreach—including
Watergate, the bombing of Cambodia, and domestic spying by the CIA—prompted Congress to
investigate the exercise of executive power in national security matters, and to enact several laws
aimed at reasserting Congress’s role as a coequal branch of government and a check on
executive authority. See generally Thomas E. Cronin, A Resurgent Congress and the Imperial
Presidency, 95 Pol. Sci. Q. 209 (1980). It was in this context that a special Senate committee,
which eventually came to be named the Special Committee on National Emergencies and
Delegated Emergency Powers, was formed to examine presidential use of emergency powers.
See S. Res. 242, 93rd Cong. (1974); Halchin, supra, at 7-8.
The immediate impetus for the committee’s formation was Republican Senator Charles
Mathias’s discovery that an emergency declaration issued in 1950, at the start of the Korean
War, was still in place and was being used to prosecute the war in Vietnam. See Halchin, supra,
at 17. On closer examination, the committee learned that four clearly outdated states of
emergency—issued in 1933, 1950, 1970, and 1971—were still in effect. See id. at 7. As Senator
Church stated: “few, if any, foresaw that [these] temporary states of emergency . . . would
become what are now regarded collectively as virtual permanent states of emergency.” 120
Cong. Rec. S. 15784-86 (daily ed. Aug. 22, 1974) (statement of Sen. Church), reprinted in S.
Comm. on Government Operations and the Spec. Comm. on National Emergencies and
Delegated Emergency Powers, The National Emergencies Act (Public Law 94-412), Source
Book: Legislative History, Text, and Other Documents, at 73 (1976) [hereinafter Spec. Comm. on
National Emergencies Source Book]. One House Report examining the issue observed:
[T]here has been an emergency in one form or another for the last 43 years. …
The history of continued and almost routine utilization of such emergency
authorities for years after the original crisis has passed … serves only to
emphasize the fact that there is an urgent need to provide adequate laws to meet
our present day needs. Legislation intended for use in crisis situations is by its
nature not well suited to normal, day-to-day government operations.
121 Cong. Rec. H.R. H8325-H8341 (daily ed. Sept. 4, 1972) (statement of Rep. Rodino),
reprinted in Spec. Comm. on National Emergencies Source Book, supra, at 244.

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Even more alarming to the committee were the nature and scope of the powers a
president could exercise upon issuing an emergency declaration. The committee counted more
than 470 statutory provisions that delegated extraordinary authority to the executive branch in
times of national emergency. These included provisions allowing a president “to seize property
and commodities, organize and control the means of production, call to active duty 2.5 million
reservists, assign military forces abroad, seize and control all means of transportation and
communication, restrict travel, and institute martial law, and, in many other ways, manage every
aspect of the lives of all American citizens.” S. Rep. No. 93-1170 (1974), reprinted in Spec.
Comm. on National Emergencies Source Book, supra, at 20.
The committee’s work culminated in the introduction and passage of the National
Emergencies Act of 1976, which took effect in 1978. See National Emergencies Act, Pub. L. No.
94-412, 90 Stat. 1255 (1976). The purpose of the law, evident in every facet of the legislative
history, was to place limits on presidential use of emergency powers. As summarized by the
committee in urging passage of the Act:
While much work remains, none of it is more important than passage of the
National Emergencies Act. Right now, hundreds of emergency statutes confer
enough authority on the President to rule the country without reference to normal
constitutional process. Revelations of how power has been abused by high
government officials must give rise to concern about the potential exercise,
unchecked by the Congress or the American people, of this extraordinary power.
The National Emergencies Act would end this threat and insure that the powers
now in the hands of the Executive will be utilized only in time of genuine
emergency and then only under safeguards providing for Congressional review.
Spec. Comm. on National Emergencies Source Book, supra, at 50. The law employed various
mechanisms to this end.5 There were several provisions intended to increase transparency and
facilitate congressional oversight with respect to the presidents’ use of emergency powers. These
included requirements for the president to transmit declarations of national emergency to
Congress and publish them in the Federal Register, National Emergencies Act, Pub. L. No. 94412, § 201, 90 Stat. 1255 (codified at 50 U.S.C. § 1621); to specify in the declaration the specific
powers he intended to invoke, and to issue updates via published executive order where
5

In addition to regulating future emergency declarations, the NEA returned emergency
powers then active to dormancy after two years. See Halchin, supra, at 11.
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necessary, 50 U.S.C. § 1631; to transmit to Congress any orders, rules, or regulations issued
pursuant to an emergency declaration, 50 U.S.C. § 1621; and to report to Congress every six
months on expenditures incurred by the government attributable to the exercise of emergency
powers, 50 U.S.C. § 1641(c).
The NEA also included provisions designed to prevent states of emergency from
becoming permanent, and to give Congress a stronger and more active role in deciding whether
states of emergency should continue. In particular, the law provided that states of emergency
would terminate after a year unless renewed by the president, see 50 U.S.C. § 1622(d); it allowed
Congress to terminate states of emergency at any time through a concurrent resolution
(commonly referred to as a “legislative veto” because it would take effect without the president’s
signature), National Emergencies Act, Pub. L. No. 94-412, § 202, 90 Stat. 1255 (codified as
amended at 50 U.S.C. § 1622); and it required both houses of Congress to meet every six months
while an emergency declaration was in effect to “consider a vote” on whether to end the
emergency, 50 U.S.C. § 1622(b).
As enacted, the law did not include a definition of “national emergency.” Critically,
however, this omission was not intended as a grant of unlimited discretion. Under an earlier draft
of the legislation, the president was authorized to declare a national emergency “[i]n the event
the President finds that a proclamation of a national emergency is essential to the preservation,
protection and defense of the Constitution or to the common defense, safety, or well-being of the
territory or people of the United States.” S. 977, 94th Cong. § 201 (a) (1975). One committee
report noted that this definition was “deliberately cast in broad terms that makes it clear that a
proclamation of a state of national emergency requires a grave national crisis.” Spec. Comm. on
National Emergencies Source Book, supra, at 96.
The Senate Committee on Government Operations removed this language, not because it
was too limiting, but because the committee believed it to be too broad. As stated in the
committee’s report:
[F]ollowing consultations with several constitutional law experts, the committee
concluded that section 201(a) is overly broad, and might be construed to delegate
additional authority to the President with respect to declarations of national
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emergency. In the judgment of the committee, the language of this provision was
unclear and ambiguous and might have been construed to confer upon the
President statutory authority to declare national emergencies, other than that
which he now has through various statutory delegations.
The Committee amendment clarifies and narrows this language. The Committee
decided that the definition of when a President is authorized to declare a national
emergency should be left to the various statutes which give him extraordinary
powers. The National Emergencies Act is not intended to enlarge or add to
Executive power. Rather the statute is an effort by the Congress to establish clear
procedures and safeguards for the exercise by the President of emergency powers
conferred upon him by other statutes.
S. Rep. No. 94-1168, at 3 (1976), reprinted in Spec. Comm. on National Emergencies Source
Book, supra, at 292. The committee’s solution ultimately proved to be flawed, as the majority of
the statutes in place today that confer power on the president during “national emergencies” do
not include definitions of the term or criteria that must be met beyond the issuance of the
declaration. See A Guide to Emergency Powers and Their Use, Brennan Ctr. (Jan. 23, 2019),
https://tinyurl.com/y78jkjvp. It is nonetheless significant that Congress believed that even a
definition limiting national emergencies to grave national crises would be “overly broad.” The
notion that Congress intended the NEA as an affirmative delegation of unlimited discretion to the
president—one that would allow the president to circumvent the will of Congress on specific
policy proposals—is contradicted by this and every other aspect of the legislative history.
Moreover, where statutes granting emergency powers do include criteria beyond the mere
declaration of an emergency, this legislative history underscores the importance of strictly
interpreting and enforcing those limitations. In the current case, President Trump has invoked a
statutory provision that provides authorization and funding for military construction projects
only during emergencies that “require the use of the armed forces,” 10 U.S.C. § 2808(a), and
only if the projects “are necessary to support such use of the armed forces,” id., and meet the
statutory definition of “military construction,” 10 U.S.C. § 2801(a). In passing the NEA,
Congress clearly intended for criteria like these to provide meaningful and enforceable checks on
the president’s authority to issue emergency declarations.

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II.

Proclamation 9844 Is Unprecedented in the History of National Emergencies Act
Implementation
In practice, the NEA has not proven to be the strong check Congress intended.

Nonetheless, outside the unique context of emergency declarations invoking the International
Emergency Economic Powers Act (IEEPA), past presidential use of emergency powers has been
relatively restrained. A review of the law’s exercise from 1978 to the present shows that
Proclamation 9844 is unprecedented, both in the absence of any arguable emergency and in the
declaration’s underlying purpose: to sidestep a Congress that would not bend to the president’s
will.
The NEA’s effectiveness was undermined by the Supreme Court’s 1983 ruling that
concurrent resolutions are unconstitutional. See I.N.S. v. Chadha, 462 U.S. 919, 954-55 (1983).
Congress responded to the decision by substituting a joint resolution as the mechanism for
terminating emergencies. See 50 U.S.C. § 1622(a)(1). Like any other legislation, a joint
resolution must be signed into law by the president, and if the president vetoes the resolution,
Congress can override the veto only with a two-thirds vote by both houses. This change greatly
diluted the role of Congress as envisioned in the original Act.6
In addition, Congress has essentially ignored the NEA’s requirement to meet every six
months while an emergency is in place and consider a vote on whether to end the emergency.
States of emergency have existed throughout the 40-plus years the law has been in effect, see
Declared National Emergencies Under the National Emergencies Act, Brennan Ctr. (Feb. 4,
2019), https://tinyurl.com/yy3betsb, which means Congress should have met approximately 80
times to review them. There is no indication, however, that Congress has ever previously done

6

The effect of this change is starkly illustrated by the current controversy. A joint
resolution to terminate Proclamation 9844 passed the House by a vote of 245 to 182 on February
26, see 165 Cong. Rec. H.R. H2105 (daily ed. Feb. 26, 2019), and passed the Senate by a vote of
59 to 41 on March 14, see 165 Cong. Rec. S1856 (daily ed. Mar. 14, 2019). Under the original
NEA procedure, that would have been sufficient to terminate the emergency. However, under the
revised legislation it went to the President’s desk, and he vetoed it. See Donald J. Trump, Veto
Message to the House of Representatives for H.J. Res. 46, White House (Mar. 15, 2019),
https://tinyurl.com/y6mlsn76. When it returned to the House for a veto override vote, it failed to
muster the necessary two-thirds majority. See 165 Cong. Rec. H2814 (daily ed. Mar. 26, 2019).
8

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so.7 Before now, only one resolution to end a state of emergency had ever been introduced, and
the emergency declaration at issue was revoked before Congress could vote on it. Tamara Keith,
If Trump Declares an Emergency to Build the Wall, Congress Can Block Him, N.P.R. (Feb. 11,
2019), https://tinyurl.com/y4vobv6m.
The NEA has thus proven weaker in implementation than in concept. Nonetheless, it has
never previously been treated as a license for presidents to invoke emergency powers literally at
will—or to do so against the express wishes of Congress. Indeed, presidents have shown
considerable restraint in their exercise of statutory emergency powers. According to the Brennan
Center’s research, nearly 70% of the authorities available to the president when he declares a
national emergency remain unused more than 40 years after the NEA took effect. Elizabeth
Goitein, Trump’s Hidden Powers, Brennan Ctr. (Dec. 5, 2018), https://tinyurl.com/y5484ngl; see
also A Guide to Emergency Powers, supra. Although presidents have declared national
emergencies 60 times during that period, 54 of those have been invoked for the sole or primary
purpose of imposing foreign economic sanctions under IEEPA and related legislation. See
Declared National Emergencies Under the National Emergencies Act, supra. These cases
constitute a category unto themselves and must be addressed separately.
Congress enacted IEEPA in 1977 to limit the powers conferred by the 1917 Trading With
the Enemy Act (TWEA). It was Congress’s sense that the TWEA, which gave presidents broad
authority to “investigate, regulate … prevent or prohibit ... transactions” in times of war or
declared emergency, Trading With the Enemy Act, Pub. L. No.65-91, ch. 106 § 5(b)(1), 40 Stat.
415 (1917) (codified as amended at 50 U.S.C. § 4305(b)(1)), had been improperly used to
regulate domestic economic activity during peacetime. IEEPA thus limited the use of TWEA to
wartime and created a new framework for peacetime emergencies. See Laura K. Donohue,
Constitutional and Legal Challenges to the Anti-Terrorist Financing Regime, 43 Wake Forest L.
Rev. 643, 647-48 (2008). Under that framework, presidents could declare a national emergency
7

On one occasion in 1980, the Chair of the House Foreign Affairs Committee sent a
letter to the Speaker of the House expressing approval over the continuation of an existing state
of emergency. See Patrick A. Thronson, Toward Comprehensive Reform of America’s
Emergency Law Regime, 46:2 U. Mich. J.L. Reform, 737, 752, 752 n. 108 (2012). This,
apparently, is the closest Congress has come before now to considering a vote.
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based on an “unusual and extraordinary threat” to the U.S. national security, foreign policy, or
economy “which has its source in whole or substantial part outside the United States.”
International Emergency Economic Powers Act, Pub. L. No. 95-223, tit. II, § 202, 91 Stat. 1626
(1977) codified at 50 U.S.C. §1701 (b). The president could then authorize a range of economic
actions to address this foreign threat.
Despite being tied to the mechanism of national emergency declarations, and despite the
requirement of an “unusual and extraordinary threat,” IEEPA has been used almost from the
outset as a basic tool of foreign policy. Presidents issue declarations under IEEPA in situations
where imposing sanctions on foreign actors would advance U.S. interests, regardless of whether
the threat to those interests is truly “unusual and extraordinary.” See Harold Hongju Koh, The
National Security Constitution: Sharing Power After the Iran-Contra Affair 47 (Yale U. Press
1990).8 IEEPA declarations create sanctions regimes that often become—and are intended to
become—semi-permanent in nature. IEEPA thus underlies current U.S. economic policies
toward governments or factions in Iran, Sudan, the Balkans, Zimbabwe, Iraq, Syria, Belarus, the
Democratic Republic of the Congo, the Central African Republic, Burundi, Lebanon, North
Korea, Venezuela, Somalia, Libya, Yemen, and Ukraine. See Declared National Emergencies,
supra.
While the routinization of IEEPA use might seem incompatible with the congressional
intent underlying the NEA, Congress has for decades acquiesced in the use of IEEPA as a
substitute for ordinary sanctions legislation. Indeed, there is some evidence that Congress, in
passing IEEPA, expected that it would be used to fill gaps in non-emergency legislative regimes.
Presidents had previously invoked a provision of the TWEA to impose controls over certain
8

The White House itself has acknowledged this dynamic. After President Obama
declared a national emergency to impose sanctions on Venezuela in 2015, the White House
hastened to reassure the public that there was, in fact, no threat to U.S. national security, despite
the executive order’s words to the contrary. “[T]he United States does not believe that Venezuela
poses some threat to our national security,” said Deputy National Security Adviser Ben Rhodes.
“We, frankly, just have a framework for how we formalize these executive orders.” Gregory
Korte, White House: States of emergency are just formalities, USA Today (April 9, 2015),
https://tinyurl.com/y4crdfmk. State Department spokesperson Jen Psaki echoed his remarks:
“This is how we describe the process of naming sanctions, and there are 20 to 30 other sanctions
programs we have.” Id.
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types of exports when export-control legislation—the Export Administration Act—had lapsed.
Congress imported the relevant language from the TWEA into IEEPA, and the legislative history
shows that Congress anticipated it could be used in the same way if the Export Administration
Act were to lapse again in the future. See Joel B. Harris and Jeffrey P. Bialos, The Strange New
World of United States Export Controls Under the International Emergency Powers Act, 18
Vand. J. Transnat’l L. 78, 78 n. 16 (1985). That, indeed, is what happened in 1983. See Exec.
Order No. 12444, 48 Fed. Reg. 48215 (Oct. 14, 1983). Both the NEA and IEEPA have
subsequently been amended without Congress acting to modify this aspect of presidents’ use of
IEEPA. See, e.g., Pub. L. No. 99-93, § 801, 99 Stat. 407, 448 (1985); Omnibus Trade and
Competitiveness Act of 1988, Pub. L. No. 100-418, 102 Stat. 1107, 1371 (1988); Department of
Defense Appropriations Act, Pub. L. No. 102-396, 106 Stat. 1876 (1992); USA PATRIOT Act of
2001, Pub. L. No. 107-56, 115 Stat. 272 (2001); International Emergency Economic Powers
Enhancement Act, Pub. L. No. 110-96, 121 Stat. 1011 (2007).
If IEEPA declarations are set aside, the picture looks very different. Declarations of
national emergency not relying on IEEPA have been few and far between. A complete list of
such declarations prior to Proclamation 9844 includes:
•

Executive Order 12722 (1990) – issued in response to the Iraqi invasion of Kuwait.
Although the emergency was initially declared for the purpose of imposing sanctions
under IEEPA, President George H.W. Bush subsequently relied on it to bolster military
strength and to engage in military construction during the Gulf War. See Exec. Order.
12722, 55 Fed. Reg. 31803 (Aug. 3, 1990); A Guide to Emergency Powers, supra.

•

Proclamation 6491 (1992)9 – issued in response to Hurricanes Andrew and Iniki. The
declaration was used to suspend minimum wage requirements with respect to

Although the proclamation stated that the hurricanes constituted a “national emergency”
and invoked emergency powers, it did not formally declare an emergency under the National
Emergencies Act. Accordingly, this proclamation is not included in the list of national
emergency declarations compiled and published by the Brennan Center. See Declared National
Emergencies, supra. It is referenced in this brief to present a complete picture of how powers
available during national emergencies have been used.
9

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reconstruction efforts in areas devastated by the hurricanes. See Proc. No. 6491, 57 Fed.
Reg. 47553 (Oct. 14, 1992); A Guide to Emergency Powers, supra.
•

Proclamation 6867 (1996) – issued in response to deadly Cuban attacks on U.S. civilian
aircraft. The declaration was used to impose a naval blockade on Cuba. See Proc. No.
6867, 61 Fed. Reg. 8843 (Mar. 1, 1996); A Guide to Emergency Powers, supra.

•

Proclamation 7463 (2001) – issued in response to the attacks of 9/11. The declaration was
used primarily to make changes in the size and composition of the military forces,
including calling reservists to active duty and implementing stop-loss policies. See Proc.
No. 7463, 66 Fed. Reg. 48199 (Sept. 14, 2001); A Guide to Emergency Powers, supra.

•

Proclamation 7924 (2006) – issued in response to Hurricane Katrina. The declaration was
used to suspend minimum wage requirements with respect to reconstruction efforts in
areas devastated by the hurricane. See Proc. No. 7924, 70 Fed. Reg. 54225 (Sept. 8,
2005); A Guide to Emergency Powers, supra.

•

Proclamation 8443 (2009) – issued in response to the swine flu epidemic. The declaration
was used to waive certain legal requirements in order to facilitate the provision of public
health services. See Proc. No. 8443, 74 Fed. Reg. 55439 (Oct. 23, 2009); A Guide to
Emergency Powers, supra.
Each of these proclamations responded to events or circumstances that would qualify as

an “emergency” under the plain meaning of that word; i.e., there was a sudden, unexpected turn
of events that at least arguably required immediate action. See, e.g., Emergency Definition,
Merriam-Webster Online Dictionary, https://tinyurl.com/yxw5fncq (last visited Apr. 25, 2019)
(defining “emergency” as “an unforeseen combination of circumstances or the resulting state that
calls for immediate action”); Emergency Definition, English Oxford Living Dictionaries,
https://tinyurl.com/y5g2pwq7 (last visited Apr. 25, 2019) (defining “emergency” as “[a] serious,
unexpected, and often dangerous situation requiring immediate action”). Moreover, with the
exception of Iraq’s invasion of Kuwait, which prompted an emergency declaration for the initial
purpose of imposing sanctions under IEEPA, these occurrences directly and significantly
affected Americans’ health or safety. Perhaps most significantly, in none of these cases did
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presidents invoke emergency powers to take action after Congress had explicitly considered and
rejected legislation to authorize such action.
Proclamation 9844 is thus unprecedented in two respects. First, the problem it seeks to
address cannot reasonably be described as an “emergency.” At the time President Trump issued
the declaration, there had been no sudden, unexpected change in illegal immigration at the
southern border. According to official government data, illegal border crossings in 2017 reached
their lowest point in 46 years; they remained close to that historic low, and well within the
fluctuation range for the past several years, in 2018. See Lori Robertson, Illegal Immigration
Statistics, FactCheck.Org, (Jan. 9, 2019), https://tinyurl.com/ybn5mr7s; John Burnett, Arrests for
Illegal Border Crossings Hit 46-Year Low, NPR (Dec. 5, 2017, 11:10 AM),
https://tinyurl.com/y84xapfl. Nor had there been any significant, unexpected changes in patterns
of crime or drug smuggling.10 Indeed, the only change in circumstances the president was able to
identify in his proclamation is an increase in families seeking asylum at the border. See Proc. No.
9844, 84 Fed. Reg. 4949 (Feb. 15, 2019). This change, however, is not evidence of “unlawful
migration”—the crisis identified in the proclamation—as these families are seeking admission to
the United States through lawful means.
Moreover, it is clear from President Trump’s own words and conduct that he did not
believe the situation at the southern border required “immediate action.” For the first two years
of his administration, he accepted Congress’s decision not to provide $5.7 billion in border wall
funding with little pushback. He first hinted that he might declare a national emergency in early
January 2019, see Jane C. Timm, Fact check: What’s a ‘national emergency’ and can Trump
10

Statistically, immigrants—both documented and undocumented—remain less likely to
commit crimes, including violent crimes, than U.S. citizens. See, e.g., Alex Nowrasteh, The
Murder of Mollie Tibbetts and Illegal Immigrant Crime: The Facts, Cato Institute (Aug. 22
2018), https://tinyurl.com/y5boc9me (observing that “[t]he illegal immigrant conviction rate for
homicide was 44 percent below that of native-born Americans in 2016 in Texas”) (emphasis in
original). Similarly, official reports indicate that the drugs President Trump has identified as
posing a threat to the U.S.—methamphetamine, heroin, cocaine, and fentanyl—continue to be
smuggled primarily through ports of entry, as they have in the past. See CBP Enforcement
Statistics FY2018, U.S. Customs and Border Protection, https://tinyurl.com/y9c4c6ft (showing
that, between October 2017 and August 2018, federal agents seized 88 percent of cocaine, 90
percent of heroin, 87 percent of methamphetamine, and 80 percent of fentanyl at ports of entry).
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declare one to get his wall?, NBC News (Jan. 4, 2019), https://tinyurl.com/ycxmurfn, yet he
waited a full six weeks before declaring it. When he announced the declaration, he explicitly
stated that quick action was not a necessity in this case, just a personal preference: “I could do
the wall over a longer period of time. I didn’t need to do this. But I’d rather do it much faster.”
Remarks by President Trump on the National Security and Humanitarian Crisis on our Southern
Border, White House (Feb. 15, 2019), https://tinyurl.com/y3jenqeu.
Second, no previous president has invoked emergency powers to take an action for which
Congress had explicitly withheld its consent.11 Here, President Trump for two years sought
funding from Congress to build a wall along the southern border, and Congress consistently
refused to provide it. Indeed, Congress voted repeatedly not to give the president the authority
and funds that he requested.12
The President has been quite forthright that his purpose in declaring an emergency was to
get around Congress. In the weeks leading up to the declaration, he repeatedly stated that he
would give Congress time to change its mind about funding the wall, and that he would declare
an emergency only if Congress refused to give him what he wanted. On January 10, President
Trump stated his preference for “do[ing] the deal through Congress,” but he added that if the
deal did not “work out,” he would “almost … definitely” declare a national emergency. Remarks
by President Trump Before Marine One Departure, White House (Jan. 10, 2019),
https://tinyurl.com/yycew5dk. Asked about his threshold for declaring an emergency, President
Trump responded, “My threshold will be if I can’t make a deal with people that are
The closest comparison is President Ronald Reagan’s emergency declaration in 1983,
which he used to continue certain export controls under IEEPA after a statute authorizing such
controls had lapsed. See Exec. Order No. 12444, 48 Fed. Reg. 48215 (Oct.14, 1983). As noted
above, however, the legislative history of IEEPA indicates Congress’s awareness that presidents
would be able to use IEEPA for that very purpose. See supra pp. 10-11. Importantly, that was not
a case in which Congress voted to deny the president authority or funding for the very action he
then attempted to take.
12
Over the course of nearly a year of negotiations, Congress repeatedly declined to
allocate $5.7 billion for the border wall, and never passed a bill allocating more than $1.6 billion
for fencing. See, e.g., Department of Defense Appropriations Act, 2018, H.R. 695, 115th Cong.
(2017) (failed in conference after an amendment adding $5.7 billion in border wall funding
passed the House); End the Shutdown and Secure the Border Act, S.Amdt. 5 to Supplemental
Appropriations Act, 2019, H.R. 268, 115th Cong. (2019).
11

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unreasonable.” George Sargent, Trump: I have the ‘Absolute Right’ to Declare a National
Emergency if Democrats Defy Me, Wash. Post (Jan. 9, 2019), https://tinyurl.com/y5f5eqwg. On
February 1, Trump reiterated that he was planning to wait until February 15, the date on which a
temporary appropriations measure would lapse, before issuing an emergency declaration. See
Excerpts from Trump’s Interview with the New York Times, N.Y. Times, (Feb. 1, 2019),
https://tinyurl.com/y9gsosk4; see also Transcript: President Trump on “Face the Nation,” CBS
News, (Feb. 3, 2019), https://tinyurl.com/y8l38g72. He predicted that “we will be looking at a
national emergency, because I don’t think anything is going to happen [in Congress]. I think the
Democrats don’t want border security.” Remarks by President Trump in Meeting on Human
Trafficking on the Southern Border, White House (Feb. 1, 2019), https://tinyurl.com/y5ghp3eh.
This clear intent to circumvent Congress differentiates Proclamation 9844 from any
declaration that precedes it. Using emergency powers for this purpose is thus contrary, not only
to Congress’s intent in enacting the NEA, but also to 40 years of post-enactment practice.
III.

Upholding Proclamation 9844 Would Create a Dangerous Precedent
If allowed to stand, President Trump’s emergency declaration would create an

extraordinarily dangerous precedent. In the future, presidents would know that they could invoke
emergency powers to address even chronic or routine problems, and that they could use those
powers to take actions for which Congress has expressly withheld consent. In other words, where
emergency powers exist that could resolve a policy dispute with Congress, there would be
nothing to stop a president from deploying them, and it would require a veto-proof majority of
Congress to put an end to the contested policy. This would fundamentally upset the balance of
power between the president and Congress. It would also undermine one of the basic principles
of democracy: that the policies pursued by our government are those approved by a majority of
Congress, not those that Congress cannot muster a supermajority to reject.
Moreover, the next time a president decides to declare an emergency for political reasons,
he or she could invoke powers far more potent than the one that President Trump has invoked
here. The Brennan Center has catalogued 123 statutory provisions that become available to
presidents when they declare a national emergency. Ninety-six of these require nothing more
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than the president’s signature. Twelve contain a de minimis restriction, such as a requirement that
an agency head certify the necessity of the measure (something the president could simply order
the agency head to do). Only fifteen of these powers contain a more substantive restriction, such
as a requirement that the emergency have certain specified effects. See Goitein, Trump’s Hidden
Powers, supra; A Guide to Emergency Powers, supra.
While some of these powers are narrowly crafted, others are sweeping, and their
invocation as a means of short-circuiting Congress could have profound consequences. Simply
by signing a declaration of national emergency, for instance, the president can take over or shut
down radio stations. See 47 U.S.C. § 606(c). If he goes further and declares a mere “threat” of
war, he can take over or shut down facilities for wire communication, see 47 U.S.C. § 606(d)—
including, according to some policymakers’ interpretation, facilities for Internet traffic inside the
U.S. See David W. Opderbeck, Does the Communications Act of 1934 Contain a Hidden Internet
Kill Switch?, 65 Fed. Comm. L.J. 1, 3-6 (2013). This power was last exercised during World
War II, when electronic communications were still at a primitive stage. See Elizabeth Goitein,
The Alarming Scope of the President’s Emergency Powers, Atlantic, Jan./Feb. 2019, at 39, 42. It
would be infinitely more potent if deployed today—perhaps to implement cybersecurity or
electronic surveillance policies that Congress refuses to endorse.
Another emergency power allows the president to detail any member of the U.S. armed
forces to “any . . . country that he considers it advisable to assist in the interest of national
defense.” 10 U.S.C. § 712(a)(3). This power has not been exercised during the 40 years the NEA
has been in effect. Yet this has also been a period of congressional acquiescence in executive
branch deployments of the military. See Louis Fisher, Congressional Abdication: War and
Spending Powers, 43 St. Louis U. L.J. 931, 967-80 (1999). There are some indications that
Congress is beginning to reassert itself in this area. See Karoun Demirjian, With vote to end U.S.
involvement in Yemen’s war, House sets up Trump’s second veto, Wash. Post, Apr. 4, 2019,
https://tinyurl.com/y4fhw9aq. If that continues—and if courts have given their blessing to
presidential use of emergency powers to resolve policy disagreements with Congress—the power

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to detail members of the U.S. armed forces during national emergencies could give presidents a
convenient workaround.
IEEPA is particularly worrisome. To date, it has been used primarily to advance U.S.
foreign policy by imposing sanctions on foreign entities, including government officials, political
factions, terrorist groups, and suspected drug traffickers. See Declared National Emergencies,
supra. This usage has been relatively uncontroversial; indeed, as noted above, Congress has for
decades allowed such sanctions to stand even in the absence of true emergencies. However, the
text of the law does not limit the president to foreign targets. While IEEPA declarations must cite
a threat that emanates in substantial part from overseas, the actions that the president can take in
response may target U.S. citizens and residents—as occurred after 9/11, when the administration
of President George W. Bush used IEEPA to effectively shut down several U.S.-based Muslim
charities, asserting that their donations benefited terrorists overseas. See Lawyer’s Comm. for
Civil Rights of the S.F. Bay Area, The OFAC List: Due Process Challenges in Designation and
Delisting 3, 20-21 (July 2014), https://tinyurl.com/yxwzbsz6. In theory, then, presidents could
use IEEPA to impose crippling financial punishment on U.S. persons and organizations based on
a unilateral executive branch determination that their actions undermine U.S. foreign policy.13
Congress might not acquiesce in the widespread domestic use of IEEPA—but if the NEA is
available to circumvent Congress, then the opposition of a majority of Congress would make
little difference.
The list goes on. There are statutory provisions that authorize the president, during a
national emergency, to prohibit or limit the export of any agricultural commodity, see 7 U.S.C. §
5712(c); to suspend statutory wage requirements for public contracts, see 40 U.S.C. § 3147; to
“coordinate” domestic transportation, see 49 U.S.C. § 114(g) (a provision that arguably would
allow the Secretary of Transportation to limit the use of trucks or automobiles for purposes of
restricting emissions, see Dan Farber, Using Emergency Powers to Fight Climate Change, Legal
Courts might hold that the Constitution limits the government’s ability to take this
approach. After 9/11, two lower courts held that aspects of the government’s use of IEEPA
against U.S.-based Muslim charities violated the Constitution. See Al Haramain Islamic
Foundation, Inc. v. U.S. Dept. of the Treasury, 686 F.3d 965 (9th Cir. 2012); Kindhearts for
Charitable Humanitarian Dev. v. Geithner, 647 F.Supp.2d 857 (N.D. Ohio 2009).
13

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Planet (Jan. 14, 2019), https://tinyurl.com/y2qgnplw); and to sell off aliens’ property without
waiting for a court judgment, see 50 U.S.C. § 4309. If courts uphold President Trump’s actions
in this case, such formidable powers could henceforth become available—to President Trump or
to a future president—based simply on the president’s unilateral claim that he needs them, and
against the wishes of a majority of Congress.
Few presidents would be able to resist such an open invitation to unchecked power. At a
minimum, we could expect government by presidential emergency order to become far more
common than it has been in the past. It would become a tool for presidents of both parties to
advance long-term policy goals in the face of congressional resistance. This would be
inconsistent with Congress’s intent when it passed the NEA, with the constitutional separation of
powers, and with basic democratic principles.
CONCLUSION
For the foregoing reasons, we urge this court to grant the Plaintiffs’ motion for summary
judgment and enjoin the operation of Proclamation 9844.

Respectfully submitted,
/s/Elizabeth Goitein
Elizabeth Goitein (Pro Hac Vice)
Brennan Center for Justice at NYU Law
1140 Connecticut Ave. NW, Ste. 1150
Washington, D.C. 20036
(202) 249-7192 (telephone)
(202) 223-2683 (fax)
goiteine@brennan.law.nyu.edu
Counsel for Amicus Brennan Center for
Justice

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CERTIFICATE OF SERVICE
I hereby certify that on May 2, 2019, I electronically filed the foregoing document with
the U.S. District Court for the Western District of Texas through the CM/ECF system, which will
send notifications of such filing to all CM/ECF counsel of record in the matter.

DATED: May 2, 2019

/s/Elizabeth Goitein
Elizabeth Goitein (Pro Hac Vice)
Brennan Center for Justice at NYU Law
1140 Connecticut Ave. NW, Ste. 1150
Washington, D.C. 20036
(202) 249-7192 (telephone)
(202) 223-2683 (fax)
goiteine@brennan.law.nyu.edu

19