President Donald J. Trump, joined by Vice President Mike Pence and members of the White House Coronavirus Task Force, delivers remarks during a coronavirus update briefing March 20, 2020. Official White House Photo: Shealah Craighead

The New York City Bar Association, citing what it sees as misuse of authority under President Donald Trump, is urging the U.S. Congress to pass legislation that would shift away from the White House some of the extensive power that can be wielded after declaring a national emergency, writing that there is growing concern that Congress has little or no "bulwark against unchecked presidential authority" when an emergency is declared.

The bar association, in a report sent to U.S. Senate Majority Leader Mitch McConnell on Wednesday and in accompanying news release issued Thursday, said that during the last century Congress has given the U.S. president increasing authority, via more than 100 statutes, to order action when there is a national emergency not involving military conflict.

While pointing to a Brennan Center for Justice guide for certain information and analysis—including the totaling of the relevant statutes that have broadened executive branch power—the bar association said that "the U.S. President can exercise extensive emergency powers that Congress has proven unable to limit once an emergency has been declared."

"Among the vast emergency powers of the President … are Section 606 of the Communications Act" that "allows the president, upon proclaiming a national emergency, or a state of public peril or disaster, to close any radio station or 'device capable of emitting electromagnetic radiations,' or to 'authorize the use or control of any radio station or device and/or its apparatus and equipment,'" the bar association pointed out in a detailed news release.

"The President essentially would be able to take control over the country's communications network," the group continued. It added that "other statutes provide for Executive Branch takeovers of transportation systems and would allow major control of the country's economic system."

The bar association calls for the enactment—with one modification, it says—of the currently proposed ARTICLE ONE Act, sponsored by Sen. Mike Lee, R-Utah. The statute, according to the bar association, would "rebalance the relationship between the Executive and Legislative Branches in the exercise of authority during national emergencies not involving military conflict."

Under the proposed act, which would revise the National Emergencies Act, there would be a "reversal" of the "presumption and burden of continuing a declared emergency," wrote the bar association in a cover letter sent to McConnell accompanying its report. The reversal would put the onus to continue a national emergency declaration on the president, and give Congress a better "check" on such continued authority, the bar group said.

"Instead of an emergency continuing until it is terminated by a resolution enacted into law [by Congress], any authority the President invokes during an emergency terminates after 30 days unless a joint resolution of approval is enacted into law," the bar association wrote in the cover letter. It added that "if Congress does not pass such a resolution, the president may not, during the remainder of the president's term of office, declare a subsequent national emergency with respect to the same circumstances."

In the letter to McConnell, which was copied to a 23-member congressional delegation that includes Speaker of the House Nancy Pelosi, the bar association further wrote that "as the COVID-19 pandemic grips the nation, we fully appreciate that our attention must be focused on the immediacy of protecting our families and communities, supporting our emergency responders, and preserving our collective physical and economic health. However, given this state of national emergency, it is perhaps more important than ever to recognize the need for a balanced relationship between the Executive and Legislative Branches."

In its 7-part report delivered to McConnell, the group further said that "concern has grown in Congress that the NEA [National Emergencies Act] is not serving as a bulwark against unchecked presidential authority."

In the news release, it noted that the "current discussion" about the breadth and extent of executive power during a stated emergency began "when President Trump declared an emergency to justify using funds not allocated for the purpose to build a wall along the country's southern border." It then further noted that "more recently, the president has invoked emergency powers in addressing the coronavirus."

The White House did not comment Thursday on the city bar's support for the proposed act.

The bar group said that while it backs the ARTICLE ONE Act, "it is concerned that the International Emergency Economic Powers Act (IEEPA) is excluded from the bill." It says that the IEEPA should be part of it.