To Rein in Trump, Pass a ‘No Kings Act’

DEMOCRATS HAVE SIGNALED a broad legislative agenda to turn their stunning midterm victory into policy and law. Minority Leader Hakeem Jeffries—the presumptive speaker of the House when the Democrats take control in January—has said that the Democratic agenda will include, among other things, reinstating the enhanced Affordable Care Act premium subsidies, reversing Medicaid cuts, limiting the president’s ability to impose global tariffs, and restoring congressional power over trade policy.

Two glaring problems: First, of course, is the high likelihood that none of it will become law in the face of Donald Trump’s inevitable use of his veto power. Second, as ambitious as Jeffries’s legislative agenda may be, it would not significantly rein in a furious Trump who, having lost the ability to act through Congress, will have to rely almost exclusively on the exercise of unilateral presidential actions in order to do anything.

Trump, who is addicted to attention and being perceived as dominating the national (and world) narrative, has already signaled that he will double down on his promiscuous, norm-busting, and often illegal attempts to push the boundaries of presidential power. His appointment of Stephen Miller as his new chief of staff is a declaration of war, a middle finger to those who naïvely hope that Trump might have learned something from his midterm shellacking. Miller, the ultimate Trump loyalist, is, as the New York Times put it with considerable understatement, “in a prime position to continue his longtime pursuit of limiting checks on executive power.”

Congress must now act promptly to limit Trump’s abuse of presidential powers over the next two years, and to rein in future presidents as well. It is a problem largely of Congress’s own making. Over the course of decades, Congress has ceded many of its core powers to the executive branch by giving the president broad, undefined emergency powers that might be well suited for a “normal” president, but that give a president with an authoritarian streak arguably legal cover to wreak holy hell on the nation by doing, in Trump’s own words, “whatever I want.”

As I wrote a year ago, there oughta be a law. And now that the Democrats have won control of Congress, there can be.

The laws granting emergency authorities to the executive branch were intentionally written in broad, nonprescriptive language, to give presidents the flexibility to respond to unanticipated and unplanned-for events that a slow-moving Congress was not equipped to handle.

But a key lesson from the Trump era is that strategic ambiguity in the granting of emergency powers to the executive branch is dangerous. If ever there was a time for it, that time has passed: Trump has turned what once may have been a virtue into undeniably a vice. Granting presidents the power to declare an “emergency” without ever defining the term, and without being specific about what actions a president may or may not take when he declares an emergency, no longer works. And it has to be reversed by the new Congress—and fast—to put some boundaries on Trump during the next two years.

To be clear, the immediate problem here isn’t the gigantic vulnerability of our constitutional order. This isn’t just a matter of some high-concept concern about the decline of democracy, erosion of the balance of powers, and creeping authoritarianism, although it is certainly all of that. Trump’s exercises of questionable emergency and war-making powers—such as his arbitrary imposition of tariffs to settle scores and bully friends and enemies alike and his unilateral commencement of a war in Iran that shortly turned into a regional war with no end in sight—have had a direct impact on the everyday lives of Americans. They have created inflation and exacerbated an affordability crisis that was largely under control when Trump took office. They have made Americans less safe by undermining our nation’s soft power, giving license to bad actors like Putin, and alienating friends like Canada and virtually all of Europe. They have even led some allies to debate acquiring their own nuclear weapons, and to seek additional nuclear protection from European powers, because they no longer feel confident they can rely on the American nuclear umbrella.

---

WHAT CONGRESS GAVE to the executive branch, it can—and must—take away. At the very least, Congress must place meaningful boundaries around the ambiguously defined emergency powers it has granted to the president.

First, it must place reasonable limits on the circumstances under which a president can declare a national emergency. Put simply, it must define what constitutes an “emergency” and what doesn’t.

Second, it must then be clear about what sorts of actions a president can—and cannot—take once an emergency has been declared. And for how long.

Congress can do all of that by passing a single law that I’ll call the Emergency Powers Reform Act (“EPRA”)—but you might think of it as the No Kings Act.1

The first order of business for the EPRA—clarifying the circumstances under which a president can and cannot declare a national emergency—can be accomplished by amending the National Emergencies Act.

The National Emergencies Act grants the president the authority to declare a national emergency to trigger the emergency powers granted by Congress in “any provisions of law conferring powers and authorities to be exercised during a national emergency.”

The problem with the existing act is that while it authorizes the president “to declare a national emergency,” it doesn’t define the term “emergency” or say anything at all about what kind of circumstances rise to the level of emergency. It leaves that entirely to the president without any apparent boundaries or guardrails. Would a perceived rise in distrust of election results (likely created systematically by the president himself) constitute a national emergency triggering extraordinary presidential powers? Most likely yes, if the president says so. Would a perceived national malaise that the president believes is inhibiting his agenda be a national emergency? Probably—who’s to say it’s not, given the lack of any definition of what constitutes an emergency and a president’s clear statutory authority to declare emergencies.

Trump has already used numerous national emergency declarations to justify hundreds of actions, including immigration measures, sweeping tariffs, and energy deregulation that, without emergency powers granted to him by Congress, would have required congressional approval or lengthy regulatory review. While the courts have blocked some of the actions Trump has purported to take in response to a declared national emergency, none of the cases were decided on the basis of a finding that Trump improperly declared an emergency.

It may be difficult to come up with a perfect working definition of a national emergency, but that’s why legislators get the big bucks. Start by making it clear that a persistent “condition” is not a national emergency, and that it is something that can and should be addressed by Congress, not the president. Include language requiring imminence and the need for immediate response. At least give the courts some ammunition to call out clearly pretextual, opportunistic power grabs. None of this is beyond the abilities of skilled, experienced drafters of legislation, and they can draw on the expertise of think tanks and academic centers that have been exploring precisely this matter for the last few years.

The termination provisions of the National Emergencies Act also need to be amended. As currently written, the act requires each chamber of Congress to meet to consider a vote on terminating an emergency within six months of its declaration, and every six months thereafter. That is far too long. Moreover, even if both chambers vote to terminate the emergency, the president can veto their resolution, forcing Congress to muster two-thirds majorities to end an emergency that a president declared unilaterally.

Simply put, the act puts the burden on the wrong party. It should not be on Congress to stop the president. The burden should be on the president to get affirmative confirmation from Congress within a reasonably short period of time. And the president should not have unilateral authority, as he does under the act, to continue an emergency indefinitely if it has not been affirmatively terminated.

Once the EPRA amends the National Emergencies Act in a way that places some meaningful limitations on when a president can declare a national emergency, how long the emergency will stay in force, and how it can be terminated, it must clarify exactly what a president can and cannot do after an emergency has been properly declared.

The nature of the actions a president is authorized to take in the face of any given national emergency is not addressed in the National Emergencies Act. Rather, the scope of the authorized emergency actions is set out in the various statutes under which Congress has granted emergency authorities to the executive branch.

A comprehensive inventory of the laws currently on the books that grant emergency powers to the executive branch already exists. The Brennan Center’s A Guide to Emergency Powers and Their Use, updated last year, identified 137 statutory powers that may become available to the president when he declares a national emergency.

Congress doesn’t have to meticulously scrutinize every one of the 137 statutory powers (although it would be nice if Congress had some understanding of the extent to which it has ceded its power to the president). Only a handful of the statutes have been used by Trump to purportedly legitimatize his most destructive actions, and only a handful are clearly dangerous. Plus, no legislation should be saddled with the burden of trying to fix everything that could possibly go wrong.

Congress should concentrate on the emergency and other statutory authorities that Trump has used as a pretext to conduct undeclared wars, send uninvited and unwanted troops into American cities, impose sweeping tariffs on the entire world, and remove otherwise peaceful, productive noncitizens to random countries (and even entire continents) with which they have absolutely no connection. There are undoubtedly other statutes providing emergency powers that need to be amended, but the legislative process has to start somewhere.

Some of these authorities do not depend on a formal declaration of national emergency, so EPRA should reach beyond the National Emergencies Act to constrain other broad statutory powers presidents can invoke to act unilaterally, including those governing domestic military deployments and deportations, and to strengthen existing limits on presidential war-making.

I identified some of the specific statutes that need to be amended a year ago in an article for The Bulwark. They include:

• 10 U.S.C. § 12406, which authorizes a president to call National Guard members into federal service if the country “is invaded or is in danger of invasion” from a foreign country or if there is “a rebellion or danger of a rebellion” internally—but neither of those “danger of” assessments is defined or limited anywhere in the statute.
• The International Emergency Economic Powers Act of 1977, which provides emergency authority to “regulate” “importation” to deal with “any unusual and extraordinary threat” to the economy, and which Trump used to purportedly justify broad, sweeping tariffs on the entire world, despite the fact that the words “tariff” and “tax” appear nowhere in the statute. The Supreme Court ruled in February that Trump was wrong to claim that some of his tariffs were authorized by this law, but the Court did not rule on the legality of other tariffs that Trump has imposed, and the relevant statutory language needs to be clarified.
• 8 U.S.C. § 1231(b), which requires noncitizens to be removed to the country from which they arrived in the United States unless doing so would be “impracticable, inadvisable, or impossible” (none of which is defined or bounded in any way), and which Trump has used to send nationals of Cuba, Mexico, Laos, Myanmar, and Vietnam to South Sudan in Africa.
• The War Powers Resolution of 1973 (not mentioned in my Bulwark piece last year because Trump had not yet commenced his war with Iran), which requires the president to consult with Congress before introducing United States Armed Forces into hostilities or situations where imminent involvement is clearly indicated by the circumstances, and generally requires their withdrawal within sixty days absent congressional authorization. The act needs stronger enforcement mechanisms to prevent presidents from circumventing those limits by invoking broad claims of constitutional authority under Article II, as Trump has done.

Congress need not stop there, of course; there is no reason legislators could not identify other statutes that deserve revision, so long as doing so doesn’t endanger EPRA.Join

---

SO MUCH FOR IMAGINING what a necessary reform bill might look like. Now a brief visit to where the real world currently stands.

Assuming the Democratic Congress accepts the challenge to rein in Trump and future presidents and to reclaim some of its constitutional authority by passing the EPRA or something like it, does it have a reasonable chance of success?

It can certainly pass in the House, where Democrats will have a commanding majority in January. And with 54, 55, or 56 Democratic senators, only a handful of Republicans would be needed to defeat a filibuster in the Senate. One can readily suppose that enough GOP senators who will be facing re-election in the next cycle can read the room following their devastating defeat in the midterms. More would be needed to override a presidential veto, but not that many more.

Bottom line: Although not guaranteed, it is more than reasonable to believe that such a law could make it through the Senate, especially if congressional Democrats have the wisdom to invite input from sympathetic (or frightened) Republican senators in drafting the bill. It is also possible that enough GOP votes could be obtained to override a veto. In other words, it’s not a fantasy, and it’s clearly worth the effort.

But what if the proposal fails to make it into law?

In that case, there would still be enormous benefits. Democratic candidates for president and Congress could use the issue against naysaying Republicans in the 2028 election, possibly to great effect. Following the 2026 midterms, there is every reason to believe that the American electorate punished the GOP not only for economic reasons and the war with Iran, but also because they are sick of Trump’s corruption, chaos, and cruelty. Candidates perceived as refusing to take reasonable steps to rein him in and restore the authority of Congress could be punished at the polls.

With Democratic control of Congress, it’s time to step up. Focus not only on managing the symptoms of the imperial disease Trump has inflicted on our country, but also on curing the disease.

And start by passing the EPRA or something like it.