National emergencies: Chadha wasn't the problem

Rethinking national emergencies by confronting Congress’s deeper abdication

This is the first post of my new substack, Prototyping Politics. You can read more about it here.

For the last five years, I’ve been working on reforming the national emergency powers system in the United States. I’ve testified before Congress. I’ve lobbied on behalf of reform legislation. I’ve worked with advocates, staffers, think tanks, and occasionally even the executive branch. This isn’t some obscure corner of the separation-of-powers debate. National emergencies have become a frontline issue—invoked to build a border wall, to manage a pandemic, to impose sanctions, to reroute federal funds. The last three presidential terms—Trump, Biden, and Trump again—have all relied on emergency declarations in ways that test the limits of executive power. These tools are no longer exceptional. They are routine.

And for most of that time, I’ve told the same story.

It goes like this: In the aftermath of Watergate and Vietnam, Congress passed a series of laws to restrain the executive. One of them, the National Emergencies Act of 1976 (NEA), created a clear process: presidents could declare emergencies and unlock extraordinary powers, but Congress retained the right to review and terminate those emergencies through a legislative veto. Then in 1983, the Supreme Court’s decision in INS v. Chadha struck down the legislative veto. The core mechanism of congressional control disappeared. And since then, emergency powers have metastasized. Trump’s border wall emergency. Biden’s COVID emergency. A cycle of abuse enabled by an unbalanced system. The solution? Restore congressional oversight. Rebuild the legal architecture. Return to the principles of 1976, updated for the realities of 2025.

That’s still a true story. But I think it’s incomplete. And maybe, fundamentally, I got something wrong.

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In 2019, for the first time since the NEA passed, Congress actually voted to terminate a national emergency. It was Trump’s border wall declaration. The resolution passed the House and Senate. Trump vetoed it. Congress failed to override the veto. This is when I got involved in national emergency reform, supporting Senator Mike Lee and Chip Roy’s ARTICLE ONE Act.

Under Biden, Congress voted to end the COVID emergency—and while the White House initially opposed it, Biden ultimately signed the resolution into law. He did so under mounting political pressure from Congress and the public. The votes weren’t just symbolic—they forced his hand.

Each time, I found myself explaining why Congress couldn’t do more. Chadha, I’d say. Congress used to have a legislative veto. Then Chadha took it away. Now, any action requires a joint resolution that the president can veto. Congress lost its teeth.

But then I started asking: why didn’t Congress do anything between 1976 and 1983?

The NEA was clear. Every six months, Congress was supposed to review active emergencies. Not once did it do that. Not in 1977. Not in 1981. Not in the months before Chadha was decided. The entire structure depended on Congress using its powers. But Congress didn’t act. It didn’t build a record of oversight. It didn’t force votes. It didn’t normalize confrontation.

And so now, I wonder: what if the real story is the opposite of what I’ve been saying?

What if Chadha didn’t break the system?

What if congressional inaction led to Chadha?

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Imagine an alternate history. Congress, starting in 1976, follows the NEA. Every six months, it holds hearings. Members introduce resolutions to terminate emergencies. Maybe a few pass. Maybe presidents resist. Maybe some fights go public. Maybe the press starts paying attention. Maybe committee chairs realize they like the feeling of relevance. The NEA becomes a living part of congressional life.

Now fast forward to 1983. Chadha comes to the Court. The justices look at a case about a one-house veto in the context of immigration policy—a truly bizarre corner of administrative law—but they do so against a backdrop where Congress is visibly and regularly using legislative vetoes to restrain the executive. The legislative veto is not theoretical. It’s active. It’s meaningful. It’s central to how governance works.

Does Chadha come out the same way?

Maybe. But it would have been harder. The Court would have had to weigh its constitutional reasoning against a political reality in which the legislative veto was the core mechanism of balance in a functioning separation-of-powers system. It would have been overturning not just a theoretical principle but a vibrant practice. That’s a different calculation.

And even if the Court still struck down the legislative veto, the political system would have already developed alternative norms. Congress would have habits of action. Committees would have oversight routines. Members would have built muscle memory. That might not be a constitutional veto, but it is a form of power.

But that’s not what happened. What happened is that Congress failed to act. So when Chadha came down, there was no record to defend. The NEA looked like a dead letter. The veto looked like an empty relic. The Court filled a vacuum.

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This realization turns the reform conversation on its head.

In the story I used to tell, the causal chain runs: Chadha breaks the system → Presidents abuse emergency powers → Congress needs new tools.

But in this new story, the chain is: Congress declines to act → Chadha removes unused tools → Presidents fill the void.

The failure isn’t at the end. It’s at the beginning.

And that leads to a very different conclusion: legal tools don’t matter if institutions don’t act.

The NEA had procedures. Congress ignored them. Chadha eliminated some of them. And only after nearly half a century did Congress finally begin to engage. That engagement—however belated—is what gives me hope.

Because if the core problem is inaction, then the solution isn’t just structural. It’s behavioral. It’s cultural. It’s political.

It’s about rebuilding a Congress that acts.

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This insight has implications far beyond emergency powers. On war powers. On appropriations. On regulatory review. Across the board, we’ve built systems that assume Congress will act—and then watch them fail when it doesn’t. We assume that the right legal trigger will produce political will. But it’s the reverse. Political will is what makes legal tools work.

Action comes first.

Action builds precedents. It creates momentum. It changes expectations. It gives courts something to respond to. It gives members of Congress something to defend. It creates constituencies—inside the institution and out.

If you want institutional reform to last, you need action—not just architecture.

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I don’t know yet what this shift means for my ongoing work on emergency powers. It doesn’t make the ARTICLE ONE Act or the REPUBLIC Act irrelevant. In fact, it may make them more urgent, and their core architecture forces action. But I think it changes how I tell the story. It means we can’t just pass better procedures. We have to cultivate habits of confrontation. We have to normalize institutional assertion. We have to help members of Congress rediscover the muscle of governance.

That’s not a technocratic project. It’s a political one.

And maybe, just maybe, it’s the foundation of something better.