Can Potus Declare Emergency? What The Constitution Says

The US Constitution allows the President to declare a national emergency, which enables them to access special authorities to address a crisis. This provision is intended to provide the President with flexibility in rare moments of crisis. However, critics argue that this power can be exploited to bypass Congress and infringe on constitutional rights. In recent years, Presidents Trump and Biden have controversially invoked emergency powers to achieve policy objectives outside of Congress, such as Trump's declaration of a national emergency to build a border wall and Biden's use of emergency powers to forgive student loan debt during the COVID-19 pandemic.

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The US President can declare a national emergency without approval from Congress

The US Constitution does allow the President to declare a national emergency without approval from Congress. This is because Congress has delegated this authority to the President, knowing that it sometimes cannot act quickly enough to respond to certain kinds of situations, such as natural disasters and public health emergencies. Upon declaring a national emergency, the President can access over 130 special authorities, including the power to shut down communications facilities or draw down equipment from national defense stockpiles.

However, this vast expansion of executive powers can be dangerous in a democratic system, as it may be used to bypass congressional action or infringe on constitutional rights. In 1976, Congress passed the National Emergencies Act (NEA) to constrain executive overreach, allowing a national emergency to be terminated by a majority vote in Congress. Unfortunately, the Supreme Court declared such "legislative vetoes" unconstitutional in 1983, leaving a system where emergencies are “easy to declare and hard to stop”.

In recent years, there has been a growing trend of presidents from both parties relying on emergency powers to achieve policy objectives outside of Congress. For example, President Trump declared a national emergency at the southern border to override congressional refusal to fund a border wall, while President Biden used emergency powers to forgive student loan debt during the COVID-19 pandemic. Trump's frequent use of national emergencies has caused concern among some conservatives, who worry that it sets a precedent for future Democratic presidents to declare national emergencies on issues like climate change and gun violence.

To address these concerns, Senators Mike Lee and Richard Blumenthal introduced the bipartisan ARTICLE ONE Act to reassert congressional authority over emergency declarations. The act would terminate a declaration of a national emergency after 30 days unless a majority of members in both chambers of Congress vote to continue the emergency. If affirmed by Congress, the emergency would continue for one year, after which the president could renew the declaration with approval from Congress.

The declaration unlocks over 130 special authorities, including the power to control domestic transportation

The US Constitution and the National Emergencies Act grant the President of the United States the authority to declare a national emergency. This declaration empowers the president with over 130 special authorities, including the ability to control domestic transportation.

The National Emergencies Act allows the president to declare a national emergency without needing to prove a specific threat or obtain congressional approval. This act has been leveraged by presidents to address a range of issues, including border security, trade, and energy production. For example, President Trump declared a national emergency at the southern border to address illegal immigration and the influx of illicit narcotics.

The declaration of a national emergency provides the president with access to a range of powers and authorities. These include the ability to control domestic transportation, which can be facilitated through the Maritime Administration (MARAD) and the National Highway Traffic Safety Administration (NHTSA). MARAD ensures the development and maintenance of an efficient US merchant marine, capable of serving as a naval and military auxiliary in times of national emergency. It also works towards efficient ports and effective intermodal water and land transportation systems. NHTSA, on the other hand, is responsible for reducing fatalities, injuries, and economic losses from motor vehicle crashes and sets safety standards for motor vehicles and equipment.

Additionally, the president can exercise powers granted by the International Emergency Economic Powers Act, which enables the blocking and prohibiting of transactions in property and interests of specific individuals or entities. This act allows the president to impose economic sanctions and control financial flows, which can be a powerful tool in addressing national emergencies.

The declaration of a national emergency significantly enhances the powers available to the president, providing a range of tools to address the declared emergency. However, it is important to note that the use of these powers has been a subject of debate, with concerns raised about the potential for executive overreach and the impact on the constitutional balance of power.

The National Emergencies Act (NEA) allows Congress to terminate a national emergency with a majority vote

The US Constitution allows the President to declare a national emergency. In fact, 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. The first president to declare a national emergency was Abraham Lincoln, during the American Civil War.

However, the National Emergencies Act (NEA) was passed in 1976 to end all previous national emergencies and to formalize the emergency powers of the President. The Act empowers the President to activate special powers during a crisis but imposes certain procedural formalities when invoking such powers.

The Act also allows Congress to terminate a national emergency with a majority vote through a simple concurrent resolution, which does not require the President's signature. This is because Congress knew that delegating these powers to the executive branch was risky, and the Act was intended to constrain executive overreach.

Despite the Act, successive administrations have routinely renewed ongoing declarations of emergency without any deliberation from Congress. For example, in 2019, President Donald Trump declared a national emergency to fund a wall along the southern border after Congress opted not to appropriate funds for the project. Congress successfully voted twice to terminate the emergency, but Trump vetoed the resolution both times.

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The Insurrection Act of 1807 allows the deployment of National Guard troops on domestic soil without state consent

The Insurrection Act of 1807 is a law that allows the President of the United States to deploy active-duty military personnel, including the National Guard, to perform law-enforcement duties within the country. This law gives the president the authority to use military forces to suppress rebellion or domestic violence, or to enforce federal laws in certain situations.

The Insurrection Act of 1807 has been invoked in the past to address civil unrest and to enforce court orders. For example, in 1992, President George Bush invoked the Act to send in active-duty members of the Marines, Army, and National Guard to Los Angeles during the Rodney King riots. More recently, in 2020, President Trump threatened to invoke the Act in response to the George Floyd protests, urging governors to deploy the National Guard to maintain order.

The Act has been modified twice since its enactment. The first modification was made in 1861, adding a section that allowed the federal government to use the National Guard and armed forces against the will of the state government in cases of "rebellion against the authority of the government of the United States." The second modification was made in 1871, with the Third Enforcement Act revising the Act to protect Black Americans from attacks by the Ku Klux Klan and enforce the Equal Protection Clause of the Fourteenth Amendment.

While the Insurrection Act of 1807 does allow the President to deploy National Guard troops on domestic soil, there are still some constraints on this power. For example, the legislation requires the President to consult with Congress before invoking the Act and restricts the activation of troops under the Act to fourteen days without explicit congressional authorization. Additionally, the President, Secretary of Defense, and Attorney General must issue a joint certification to Congress affirming a state's reluctance or inability to enforce the laws, thus justifying the use of the military.

However, the Insurrection Act has been criticised for its lack of clear standards and vague language, giving the president almost limitless discretion to deploy federal troops in cases of civil unrest. There have been calls for Congress to amend the Act to define more clearly and precisely what situations may trigger its invocation.

The Stafford Act, commonly used in natural disasters, was invoked by President Trump in the COVID-19 pandemic

The US Constitution grants the President certain emergency powers. Section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, or the Stafford Act, is one such power that can be invoked in the event of a natural disaster.

On March 13, 2020, President Trump declared the Coronavirus Disease 2019 (COVID-19) pandemic a state of emergency, invoking the Stafford Act. This was in response to the World Health Organization's declaration of a global pandemic, and the fact that 32 states, 3 territories, 4 tribes, and 1 tribal nation had declared a state of emergency due to the virus.

The Stafford Act enables the federal government to provide needed assistance and relief in times of disaster. In this case, President Trump instructed the Federal Emergency Management Agency (FEMA) to continue to review ways to provide assistance to states, and directed the Secretary of the Treasury, Steven Mnuchin, to provide relief from tax deadlines to Americans adversely affected by the pandemic.

President Trump's use of emergency powers was not limited to the COVID-19 pandemic. He also invoked national emergencies to impose tariffs, accelerate energy and mineral production, and militarize federal lands at the southern border. Trump's frequent use of emergency powers has raised concerns among legal scholars, who fear that he is exploiting loosely written statutes to govern by unilateral decree and potentially upset the constitutional balance of power.

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