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The President’s big stick (domestic): his National Emergency Powers

11 June 2010

Summary:  There has been too much nonsense written about this important subject.  For the real story let’s look at the Congressional Research Service report “National Emergency Powers“, updated 30 August 2007. This discusses the law (which Presidents have too often ignored, a separate problem), and the many (470) grants of emergency power Congress has given the President.  How odd that the Founders forgot to include these in the Constitution.

Excerpt

Summary

The President of the United States has available certain powers that may be exercised in the event that the nation is threatened by crisis, exigency, or emergency circumstances (other than natural disasters, war, or near-war situations). Such powers may be stated explicitly or implied by the Constitution, assumed by the Chief Executive to be permissible constitutionally, or inferred from or specified by statute. Through legislation, Congress has made a great many delegations of authority in this regard over the past 200 years.

There are, however, limits and restraints upon the President in his exercise of emergency powers. With the exception of the habeas corpus clause, the Constitution makes no allowance for the suspension of any of its provisions during a national emergency. Disputes over the constitutionality or legality of the exercise of emergency powers are judicially reviewable. Indeed, both the judiciary and Congress, as co-equal branches, can restrain the executive regarding emergency powers. So can public opinion. Furthermore, since 1976, the President has been subject to certain procedural formalities in utilizing some statutorily delegated emergency authority.

The National Emergencies Act (50 U.S.C. 1601-1651) eliminated or modified some statutory grants of emergency authority; required the President to declare formally the existence of a national emergency and to specify what statutory authority, activated by the declaration, would be used; and provided Congress a means to countermand the President’s declaration and the activated authority being sought. The development of this regulatory statute and subsequent declarations of national emergency are reviewed in this report, which is updated as events require.

Congressional Concerns

The Special Committee on National Emergencies and Delegated Emergency Powers produced various studies during its existence.  After scrutinizing the United States Code and uncodified statutory emergency powers, the panel identified 470 provisions of federal law which delegated extraordinary authority to the executive in time of national emergency.  Not all of them required a declaration of national emergency to be operative, but they were, nevertheless, extraordinary grants. …

The National Emergencies Act

The special committee, in July 1974, unanimously recommended legislation establishing a procedure for the presidential declaration and congressional regulation of a national emergency. The proposal also modified various statutorily delegated emergency powers. In arriving at this reform measure, the panel consulted with various executive branch agencies regarding the significance of existing emergency statutes, recommendations for legislative action, and views as to the repeal of some provisions of emergency law. …

As enacted {on 14 September 1976}, the National Emergencies Act consisted of five titles:

  • The first of these generally returned all standby statutory delegations of emergency power, activated by an outstanding declaration of national emergency, to a dormant state two years after the statute’s approval.
  • Title II provided a procedure for future declarations of national emergency by the President and prescribed arrangements for their congressional regulation. The statute established an exclusive means for declaring a national emergency. Furthermore, emergency declarations were to terminate automatically after one year unless formally continued for another year by the President, but could be terminated earlier by either the President or Congress.
  • When declaring a national emergency, the President must indicate, according to Title III, the powers and authorities being activated to respond to the exigency at hand. C
  • certain presidential accountability and reporting requirements regarding national emergency declarations were specified in Title IV, and
  •  the repeal and continuation of various statutory provisions delegating emergency powers was accomplished in Title V. 

Since the 1976 enactment of the National Emergencies Act, various national emergencies, identified in Table 1, have been declared pursuant to its provisions. Some were subsequently revoked, while others remain operative. All original declarations made pursuant to the National Emergencies Act are identified in Table 1. Unless otherwise indicated (in italic), their status is operational. A Code of Federal Regulations or Federal Register citation is provided to enable examination of their full text.

Also worth reading is the section about past use of Emergency Powers (starting with Washington crushing the Whiskey Rebellion), and the list of national emergencies declared since 1976.  So many crisises!

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