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AFP Foundation letter to Senate committee: the president’s emergency powers should be for emergencies only

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By Thomas Kimbrell and Kevin Schmidt

May 23, 2024 | The Senate Homeland Security and Governmental Affairs Committee (HSGAC) held a hearing yesterday titled “Restoring Congressional Oversight Over Emergency Powers; Exploring Options to Reform the National Emergencies Act.”

AFP Foundation sent a letter to the Committee describing the problematic implications of the president’s effectively unlimited executive powers under the National Emergencies Act (NEA). A national emergency declaration under the NEA gives the president potential access to an estimated 148 statutory powers.

Congress intended for such delegations of authority to the president to be temporary to respond to emergent crises swiftly. However, presidents are increasingly exploiting emergency powers to address long-standing policy failures, impose policy preferences, and circumvent our constitutional system of government.

Congress passed the NEA nearly 50 years ago to establish checks and balances against the president’s emergency powers; however, the law failed to achieve that goal. Under the NEA, presidents have broad discretion to declare an emergency, which only ends upon:

  • a presidential declaration,
  • a year after the declaration, if the president fails to file a renewal in the Federal Register, or
  • a congressional joint resolution terminating the emergency.

Because the president can veto congressional joint resolutions to end emergencies, Congress would likely need a two-thirds majority in each house to end any emergency.

AFP Foundation’s letter states, “The NEA did not go far enough to constrain presidential authority and, as a result, emergency declarations—and the expanded statutory powers they unlock—can persist for decades. This system is ripe for abuse and presidents have proven reluctant to let go of authority on their own.”

The Committee invited expert witnesses from across the ideological spectrum to appear at the hearing. Representatives from the Brennan Center for Justice, Foundation for American Innovation, and Cato Institute testified to the Committee about the need for NEA reforms that establish effective congressional oversight and quell executive overreach.

AFP Foundation’s letter to HSGAC is part of our Emergency Powers Reform project, which focuses on ending rampant government abuse of “emergency powers” that too often provide a false justification for bypassing Congress to implement policies that would never otherwise pass into law. AFP Foundation’s reform principles for the NEA include:

  • New national emergencies sunset after 30 calendar days and again every six months unless Congress approves renewal.
  • Existing national emergencies sunset after six months unless approved by Congress.

The president’s emergency powers are meant to be special tools locked in a glass case. We can see they are there if needed, but they should only be brought out under extraordinary circumstances. The glass has been broken for some time, and presidents from both parties are using these powers like a Swiss army knife to impose their policy preferences and address persisting issues they perceive as problematic. Congress has an opportunity to replace the glass, put the powers back in the case, and restore constitutional order to the government. 

Read the full letter.

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Sen. Ted Cruz and Phil Gramm on DPA Misuse in the AI Executive Order

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March 26, 2024 | Yesterday, Senator Ted Cruz (R-TX) and former Senator Phil Gramm published an article in the Wall Street Journal decrying the Biden Administration’s overreach in the AI Executive Order: 

Particularly painful is Mr. Biden’s use of the Defense Production Act of 1950 to force companies to share proprietary data regarding AI models with the Commerce Department. That a law passed during the Korean War and designed for temporary national security emergencies could be used to intervene permanently in AI development is a frightening precedent. It begs for legislative and judicial correction.

What’s clear is that the Biden regulatory policy on AI has little to do with AI and everything to do with special-interest rent-seeking. The Biden AI regulatory demands and Mr. Schumer’s AI forum look more like a mafia shakedown than the prelude to legitimate legislation and regulatory policy for a powerful new technology.

Read the article.

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House Oversight Subcommittee Slams DPA Abuse in AI Executive Order

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March 21, 2024 | Yesterday, the Subcommittee on Cybersecurity, Information Technology, and Government Innovation held a hearing entitled “White House Overreach on AI.” Led by Chairwoman Nancy Mace, the hearing covered how White House Executive Order on AI abuses the Defense Production Act of 1950 (“DPA”) and improperly bypasses the legislative role of Congress, creating miles of red tape and new far-reaching regulatory requirements for AI via executive fiat.

AFP Foundation submitted a letter for the record explaining how the Order is incongruent with the purpose of the DPA, and how the DPA should be reformed to prevent future abuse:

If such broad and significant oversight of AI development is warranted, then it is Congress’s responsibility to do so through legislation. Biden treating AI as an emergency fabricates a never-ending crisis that transfers to the president major powers over the economy that are constitutionally reserved for Congress.

Chairwoman Nancy Mace’s opening statement expressed concern with this novel use of the DPA:

[The Executive Order] invokes the emergency powers of the Defense Production Act or DPA to require AI developers to notify the government if they are even considering developing powerful new AI systems. It also mandates they regularly hand over sensitive, proprietary data like testing results to the Commerce Department.

What does this have to do with defense production? The DPA gives the President extraordinary powers to ensure the supply of critical goods in time of war or national emergency.

But we’re not at war. And if artificial intelligence is an emergency, it’s not a temporary one—AI is not going away anytime soon. So, the new executive powers this EO asserts have no logical sunset.

This new reporting regime “lacks legal authority” according to the attorneys general of twenty states—including my own state of South Carolina.  These AGs last month wrote a letter to the Commerce Secretary stating that the DPA “allows for the federal government to promote and prioritize production, not to gatekeep and regulate emerging technologies.”

Adam Thierer, Resident Senior Fellow on Technology and Innovation at the R Street Institute:

This brings me to the Biden administration’s October executive order.11 This wide-ranging 100- plus page directive has been praised by some as a logical response to congressional inaction on AI, but many others have rightly noted that it stretches executive authority over emerging technology well beyond statutory limits and raises the danger of overregulation.12 For example, the order flips the Defense Production Act on its head and converts a 1950s law meant to encourage production, into an expansive regulatory edict intended to curtail some forms of algorithmic innovation.

Full Testimony

Jennifer Huddleston, Technology Policy Research Fellow at the Cato Institute:

The most notable example of this overreach in the AI EO is the use of the Defense Production Act (DPA) to justify its provisions. Originally designed to provide the executive with authority to meet a national security crisis, the AI EO invokes the Defense Production Act not to respond to such a crisis, but rather to require innovators of AI products deemed high risk that they both notify the government and submit to government run “red teaming” regarding the potential risks.6 While it’s possible Congress might develop a similar regime or requirement with the accompanying consequences of such a permissioned approach, to do so via an executive order falls well beyond the typical uses of the DPA. As we have seen in the past, once such authority is given to the executive it is often hard to restrain it or return the appropriate authority to Congress.

Full Testimony

Neil Chilson, Head of AI Policy at the Abundance Institute:

The DPA simply cannot shortcut the constitutionally established method of democratic lawmaking in the US. As we’ve heard Congress is actively considering 28 AI related bills the DPA does not empower the president to skip ahead of Congress on this.

Full Testimony

Congress intended for emergency delegations of authority to the president to be temporary to respond to emergent crises that require swift action. However, presidents are increasingly using emergency powers to address long-standing policy failures, impose policy preferences, and circumvent our system of checks and balances. The DPA is scheduled to expire in 2025 unless reauthorized. Without significant reform that tightens definitions, gives Congress a more prominent role in the process, and provides for stronger transparency and oversight, Congress should consider allowing the DPA to lapse.

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Americans for Prosperity Foundation Submits Letter for the Record on Defense Production Act Reauthorization

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March 12, 2024 | Today, the House Financial Services Committee held a hearing entitled “Mission Critical: Restoring National Security as the Focus of the Defense Production Act Reauthorization.” The hearing was the House’s first on the Defense Production Act (DPA) in over a decade. The DPA will lapse in 2025 unless reauthorized.

Committee Chairman Blaine Luetkemeyer entered a letter into the record from American for Prosperity Foundation. The letter states:

Americans for Prosperity Foundation recently launched the Emergency Powers Reform Project to educate the public about the White House’s rampant abuse of emergency powers, including misuse of the Defense Production Act, Strategic Petroleum Reserve, and National Emergencies Act. Congress intended for such delegations of authority to the president to be temporary to respond to emergent crises that require swift action. However, presidents are increasingly using emergency powers to address long-standing policy failures, impose policy preferences, and circumvent our system of checks and balances.

Read AFP Foundation’s full letter to the House Financial Services Committee. Watch the hearing.

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ICYMI: AG Reyes Leads 20-State Letter Asking AI to be Regulated by the People, Not Politics

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February 8, 2024 | Last month, Americans for Prosperity Foundation filed a Freedom of Information Act (FOIA) lawsuit to compel the Department of Commerce to produce records relating the administration’s planned artificial intelligence (AI) regulations.

This week, attorneys general from 20 states, led by Utah Attorney General Sean D. Reyes, penned a letter to Commerce Secretary Gina Raimondo responding to the Department’s request for information on the regulation of AI.

The twenty states that signed the letter are objecting to the Biden Administration’s executive order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, which seeks to centralize governmental control over this emerging technology as it develops in the private sector.

Too often, presidents exploit emergency powers to bypass Congress and implement preferred policy outcomes, subverting our constitutional system of checks-and-balances. The order invokes the Defense Production Act, a war-powers authority, in an unprecedented way to regulate AI development and impose reporting requirements on private developers. In effect, the order transfers major powers over the economy from Congress to the president.

The attorneys general write:

“The issues related to AI are complex and important, but they must be addressed by our constitutional, democratic process, not by executive fiat. The administration should work with Congress and states across the political spectrum to find bipartisan solutions that can help our country harness the power of AI and use it for the good of all, rather than only for one political party or specific groups of people.”

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ICYMI: Fabricating an artificial emergency isn’t intelligent | The Hill

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November 28, 2023 

Last week, The Hill published a piece by Thomas Kimbrell, an analyst for Americans for Prosperity Foundation, and James Czerniawski, an analyst for Americans for Prosperity. The article calls out the Biden administration’s abuse of emergency powers to regulate artificial intelligence. 

President Joe Biden’s recent executive order on artificial intelligence abuses a 1950 war powers law called the Defense Production Act  meant to avoid shortages during times of war and national emergency. Worse, the administration is likely relying on and stretching the authorities of a rarely used but very coercive provision of the law to enact an overreaching regulatory scheme without any input from Congress.

Congress intended for such delegations of authority to the president to be temporary to respond to emergent crises that require swift action. However, presidents are increasingly using emergency powers to address long-standing policy failures, impose policy preferences, and circumvent our system of checks and balances.

AI is here to stay; it’s not going away. If such broad and significant oversight of AI development is warranted, then it is Congress’s responsibility to do so through legislation. Biden treating AI as an emergency fabricates a never-ending crisis that transfers to the president major powers over the economy that are constitutionally reserved for Congress.

Read the op-ed on The Hill.