Omar Bennett
A declaration of emergency is a powerful tool that grants a government or executive body exceptional powers to address a crisis. While the specifics vary by country and legal framework, a state of emergency typically allows the government to suspend certain civil liberties and constitutional rights to restore order. This can include suspending elected officials, deploying security forces, restricting movement, and issuing emergency regulations. Notably, the suspension of constitutional rights is typically subject to strict limitations and temporal constraints to prevent abuse of power. For example, the Hungarian Constitution allows for the suspension of most civil rights during a state of emergency, but basic human rights, such as the right to life, freedom from torture, and freedom of religion, remain protected. In the United States, President Trump has been criticized for his aggressive use of national emergency declarations, with some legal scholars arguing that he is exploiting loosely written statutes to govern by unilateral decree and potentially upend the constitutional balance of power.
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What You'll Learn
Declaring a national emergency
In the United States, the President can declare a national emergency at any time, for almost any reason, without needing to prove a specific threat or get approval from Congress. This is a power that has been used by President Trump to impose tariffs, accelerate energy production, and militarize federal lands. The US Constitution's Suspension Clause allows for the suspension of habeas corpus in extraordinary circumstances, such as rebellion or invasion. This has been invoked four times since the Constitution was ratified, including during the Civil War and after the bombing of Pearl Harbor.
While the declaration of a state of emergency does grant the government greater powers, it does not necessarily mean that the constitution is suspended. For example, in Hungary, most civil rights can be suspended during a state of emergency, but basic human rights, such as the right to life, the ban on torture, and freedom of religion, cannot be. In Portugal, the constitution sets a time limit of 15 days for a state of emergency and forbids the suspension of the right to life, personal integrity, and personal identity, among other things.
In summary, while declaring a national emergency can grant a government greater powers to deal with a crisis, it does not always result in the suspension of the constitution. The specific rights that are suspended vary from country to country, and in some cases, there are constitutional safeguards in place to prevent the abuse of emergency powers.
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Emergency powers and the constitution
A state of emergency grants federal governments broad powers to restore order and stability in a country. While the constitution remains in effect during a state of emergency, certain rights and freedoms guaranteed by it may be suspended. The extent of this suspension varies across countries and depends on the specific provisions outlined in their respective constitutions.
In the United States, the president can declare a national emergency at any time, for almost any reason, without needing to prove a specific threat or get approval from Congress. For example, former President Donald Trump declared a national emergency at the southern border of the United States, citing an "invasion" of cartels, criminal gangs, and illegal aliens. This declaration allowed him to invoke the National Emergencies Act and authorise the use of the Armed Forces to address the situation.
In Nigeria, the 1999 Constitution grants the president the power to declare a state of emergency under specific circumstances, such as war or imminent war, a breakdown of public order, or a natural disaster. During a state of emergency, the federal government can deploy security forces, restrict movement, and issue emergency regulations to restore order. However, the constitution does not explicitly address whether elected officials will be suspended during this period.
In France, the constitution provides for a "state of siege" (état de siège) and a "state of emergency" (état d'urgence). While the former allows the executive power to suspend regular procedures, the latter permits a twelve-day state of emergency, after which a new law must be voted on by Parliament to extend the emergency.
In Hungary, the National Assembly can declare a state of emergency in cases of armed rebellion, natural or industrial disaster, or other specific circumstances. This declaration allows for the suspension of most civil rights, except for basic human rights such as the right to life, the ban on torture, and freedom of religion.
In summary, while a declaration of emergency does not suspend the entire constitution, it does grant the executive branch expanded powers and may result in the temporary suspension of certain constitutional rights and freedoms to address urgent situations effectively.
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Suspension of civil liberties
A declaration of emergency does not automatically suspend the constitution. However, it does grant the government or the head of state expanded powers to address the emergency. The constitution may be suspended in part or in its entirety, depending on the country's specific laws.
In the United States, for example, the President can declare a national emergency at any time, for almost any reason, without needing to prove a specific threat or get approval from Congress. While this does not suspend the Constitution, it does allow the President to exercise powers that might otherwise be limited, such as imposing tariffs, accelerating energy and mineral production, and militarizing federal lands.
In other countries, the suspension of civil liberties during a state of emergency is more explicit. For example, in Portugal, the President can declare a state of emergency in the event of aggression by foreign forces, threats to the democratic constitutional order, or public disasters. During this time, certain constitutionally-defined rights, freedoms, and guarantees may be suspended so that public authorities can take the necessary measures to restore constitutional normality. Similarly, in Hungary, the National Assembly can declare a state of emergency in the case of armed rebellion, natural disaster, or industrial disaster, during which most civil rights can be suspended, except for basic human rights such as the right to life, the ban on torture, and freedom of religion.
It is important to note that the suspension of civil liberties during a state of emergency is intended to be a temporary measure to address an immediate crisis. In Portugal, for instance, there is a 15-day limit on the initial state of emergency, after which renewal is possible. In Hungary, the state of emergency lasts for 30 days and can be extended.
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Limits to emergency powers
Emergency powers have existed in countries around the world for hundreds of years. They are intended to give the government a temporary boost in power to respond to a sudden and unforeseen emergency. However, there are limits to emergency powers.
Firstly, emergency powers are not intended to address long-standing problems, regardless of how serious they are. For example, President Trump's declaration of a national emergency at the southern border of the United States was controversial as it was argued that the problems at the border did not constitute an emergency.
Secondly, emergency powers are subject to constitutional limits, including temporal limits. For instance, the Supreme Court struck down the eviction moratorium, implemented by President Trump and extended by President Biden, as it was deemed to be unconstitutional.
Thirdly, emergency powers are not meant to grant infinite powers to the government. While they do provide expansive powers, they do not allow the government to do whatever it wants to address the emergency. In the case of President Trump's use of emergency powers to fund his border wall, it was argued that his powers did not extend to reappropriating funds that Congress had denied.
Lastly, the use of emergency powers must be reviewed by the courts to ensure they are not being abused. Legal scholars and experts have raised concerns about the unprecedented use of emergency powers by the Trump administration, arguing that they are testing the limits and pushing the boundaries of these powers.
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Historical examples of emergency declarations
The US President has significant powers during a national emergency, which can be used to bypass Congress and infringe on constitutional rights. The National Emergencies Act (NEA) was passed in 1976 to constrain executive overreach, but the Supreme Court later declared the act's congressional vetoes unconstitutional.
The first president to declare a national emergency was Abraham Lincoln during the American Civil War. Since then, national emergencies have been declared for a variety of reasons, including:
- The 1933 banking crisis and gold hoarding
- The Korean War
- A postal workers strike in 1970
- Inflation in 1971
- The Zika Virus in 2016
- Hurricane Katrina
- The 2019 Southern Border crisis
The NEA outlines 136 emergency powers that the President can assume, including the ability to:
- Suspend all laws regulating chemical and biological weapons, including the ban on human testing
- Suspend any Clean Air Act implementation plan or excess emissions penalty upon petition of a state governor
- Authorize military construction projects using existing defense appropriations
- Draft any retired Coast Guard officers
- Shut down or control domestic transportation
- Seize Americans' private property
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Frequently asked questions
A state of emergency is a situation in which a government is granted additional powers to preserve public safety, national security, or governance.
The government is granted broad powers to restore order, which may include suspending elected officials, deploying security forces, restricting movement, and issuing emergency regulations.
No, basic human rights such as the right to life, freedom from torture, and freedom of religion cannot be suspended, even during a state of emergency.
No, a state of emergency can only be declared under specific circumstances outlined in a country's constitution. These circumstances may include war, imminent danger, or a natural disaster.
