Isabella Carter
Emergency powers are a set of authorities delegated to the executive branch of a government to address sudden crises that demand an immediate response. These powers are typically activated by a declaration of a national emergency and are meant to be temporary. While they are intended to enable swift and decisive action from the executive, the potential for abuse of power is a significant concern. Emergency powers can be used to bypass regular legislative processes and infringe upon constitutional rights and civil liberties. As such, there is an ongoing debate about the constitutionality of emergency powers and the need for adequate safeguards and oversight mechanisms to prevent their misuse.
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What You'll Learn
The National Emergencies Act
The perceived need for the law arose from the scope and number of laws granting special powers to the executive in times of national emergency. A 1973 Senate investigation found that four declared emergencies remained in effect: the 1933 banking crisis, a 1950 emergency with respect to the Korean War, a 1970 emergency regarding a postal workers strike, and a 1971 emergency in response to inflation.
The problems with this system became clear when President Trump declared a fake emergency to get funding for his border wall after Congress had denied him the funds. Even though a majority of both houses of Congress voted to end this emergency, the president was able to override the veto and continue his misuse of emergency powers.
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Presidential abuse of emergency powers
The NEA has been criticised for lacking adequate safeguards to prevent abuse. While Congress can vote to end an emergency, it effectively needs a veto-proof majority to do so. This high bar gives the president near-total discretion to renew emergency powers annually and override Congress's decision. This dynamic played out during the Trump administration, when President Trump declared a national emergency to obtain funding for his border wall after being denied by Congress. Despite a majority in both houses of Congress voting to end the emergency, President Trump was able to override the veto and continue his misuse of emergency powers.
Another example of presidential abuse of emergency powers is the use of the International Emergency Economic Powers Act (IEEPA) to impose broad-based tariffs. While the IEEPA grants the president broad discretion to act promptly and protect national security, it does not explicitly grant tariff authority. The act allows the president to "regulate importation or exportation" of property in which a foreign government or national has an interest. However, there must be a direct connection between the action taken and a properly declared national emergency. In the case of President Trump's tariffs on imports from China, Mexico, and Canada, there was no clear relationship between the tariffs and the declared national emergency regarding migrants and fentanyl crossing the southern border. This use of the IEEPA to impose tariffs has been characterised as an abuse of power and an overreach of delegated authority.
The Insurrection Act is another emergency power that has been criticised for delegating excessive discretion to the president. While it has not been invoked since 1992, it grants the president the authority to deploy US troops within the country to suppress a domestic insurrection. The vague language of the act, combined with the lack of clear guidelines on its use, raises concerns about the potential for abuse.
To address these concerns, organisations like the Brennan Center for Justice are working to enhance Congress's role as a check against executive power abuse. They advocate for reforms to the legal framework of emergency powers, aiming to restore Congress's ability to provide a meaningful check on the president's authority. These efforts have gained bipartisan support and contributed to a national conversation about the need for stronger safeguards to prevent presidential abuse of emergency powers.
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Congressional oversight and withdrawal
Emergency powers are designed to enhance executive power during unexpected crises that require a swift response. While some of these powers are sensible and measured, others are open to abuse and could be used to establish authoritarian rule.
The Brennan Center for Justice has identified 123 statutory authorities that become available to the president when declaring a national emergency. These include the power to take control of domestic communications, seize bank accounts, and deploy troops to foreign countries. The Insurrection Act, for example, gives the president a dangerous level of discretion.
The National Emergencies Act, in its current form, does not provide adequate protection against potential abuses of power. It allows the president to declare an emergency with a simple signature on an executive order, and these emergencies can be renewed annually without limit. While Congress can vote to end an emergency, it effectively needs a veto-proof majority to do so. This high bar for intervention has allowed presidents to override Congress and continue to misuse emergency powers.
The Brennan Center is working to reform the legal framework for emergency powers, with the goal of enhancing Congress's role as a check against executive authority. This includes bringing public attention to specific emergency powers that require reform and providing research and testimony to Congress to help develop a bipartisan blueprint for change.
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Judicial review of executive action
One notable example of judicial review curbing executive powers is the case of Marbury v. Madison (1803), which established the principle that federal courts could scrutinize the executive branch's actions. This case set a precedent for judicial review, confirming that the judiciary could assess the validity of formal directions issued by the president to executive agencies and officials.
The Federal Judicial Center highlights the importance of judicial review in evaluating presidential actions, particularly in cases involving emergency powers. Emergency powers grant presidents access to a broad range of authorities during a declared emergency, and judicial review ensures these powers are exercised within constitutional boundaries. For instance, the International Emergency Economic Powers Act of 1977 authorized the president to freeze Iranian assets, demonstrating the significant impact of executive orders in foreign policy.
In the context of national security and emergency powers, the judiciary plays a crucial role in upholding due process and protecting individual rights. The Trump administration's use of alleged national security threats and emergencies to justify deporting noncitizens without due process was challenged by the courts. The Supreme Court held that the president could not deport individuals without due process, despite assertions of "alien enemies," underscoring the judiciary's role in checking executive power.
Additionally, the National Emergencies Act in the United States has faced criticism for allowing the president to declare emergencies with a simple signature on an executive order. This loophole was exploited by President Trump, who declared a fake emergency to secure funding for his border wall. While Congress voted to end this emergency, they lacked the veto-proof majority needed to override the president's decision. This incident highlights the importance of effective congressional oversight and judicial review to prevent the misuse of emergency powers.
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Fiscal powers and public funds
The US Constitution grants Congress the "power of the purse", giving it the ability to tax and spend public money for the national government. This power is derived from Article I, Section 8, Clause 1, also known as the "Taxing and Spending Clause", which authorises Congress to levy taxes. The House of Representatives, in particular, originates all bills for raising revenue, while the Senate may propose or concur with amendments.
Congress passes laws and appropriates spending for fiscal policies, which are normally tied to the federal budget for the upcoming fiscal year, beginning on October 1. The budget is proposed by the President and approved by Congress, which then develops budget resolutions to set parameters for spending and tax policy. These resolutions guide Congress in proposing legislation that directly appropriates funds or changes spending and tax laws. The President's role in the country's fiscal policy is also significant, as they propose the annual budget and have agenda-setting power.
The judicial branch, including the Supreme Court, can also impact fiscal policy by legitimising, amending, or declaring unconstitutional certain measures taken by the executive or legislative branches. This power was affirmed in the 1987 South Dakota v. Dole ruling, where the Supreme Court upheld the federal statute withholding highway funds from states whose drinking age laws did not conform to federal policy.
While Congress has the ultimate authority on government spending, there have been instances where no budget has been proposed, leading to difficulties for market participants in anticipating fiscal policy proposals.
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Frequently asked questions
Emergency powers are a set of authorities delegated to the President by Congress, allowing the President to take swift and decisive action to address critical situations that require an immediate response. These powers are meant to be temporary and are only to be used during a declared national emergency.
Emergency powers can include the ability to suspend certain laws, such as those regulating chemical and biological weapons or the Clean Air Act, control or shut down domestic transportation and communication facilities, deploy military troops to foreign countries, and seize private property, among others.
While Congress has delegated these powers to the President, it retains the authority to withdraw them at any time by passing a resolution. This ensures that the President's actions are subject to judicial review, and any substantial reallocation of public funds requires Congressional authorization. Additionally, even during a national emergency, the President must respect the Constitution and cannot arbitrarily curtail fundamental rights without justification.
