Emergency Powers: What Does The Constitution Say?

The ability of the President to declare a national emergency is a significant aspect of the US Constitution, empowering them to activate special powers during a crisis. This authority, established by the National Emergencies Act of 1976, allows the President to respond swiftly to unforeseen events requiring immediate action. While the Act imposes procedural formalities, it grants access to over 130 special authorities, including suspending laws, controlling transportation, and seizing private property. Since 1976, every US President has declared multiple national emergencies, with 60 emergencies declared as of March 2020, and 31 of them being renewed annually. The use of emergency powers has sparked debates about executive overreach and the need to reassert congressional authority, highlighting the delicate balance between addressing crises and preserving democratic principles.

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The National Emergencies Act (NEA)

The need for the law arose from the scope and number of laws granting special powers to the executive in times of national emergency. Congress can terminate an emergency declaration with a joint resolution enacted into law. Powers available under this Act are limited to the 136 emergency powers Congress has defined by law.

The legislation was signed by President Gerald Ford on September 14, 1976. As of March 2020, 60 national emergencies have been declared, with more than 30 remaining in effect. The Act has been invoked by every U.S. President since its passage, with some declaring multiple national emergencies.

The NEA outlines the process for declaring a national emergency, specifying that the President must identify the provisions activated and notify Congress. The Act also addresses the termination of emergency powers, stating that any powers or authorities activated during a national emergency will expire two years from September 14, 1976.

The NEA has been the subject of debate, with critics arguing that it grants the President excessive powers during a crisis. However, the Act also provides Congress with the authority to revoke emergency declarations and limit the scope of emergency powers.

Presidential emergency powers

The United States Constitution grants the President the authority to declare a national emergency, enabling them to activate special powers during a crisis. This provision is intended to address sudden and unforeseen events that necessitate an immediate and decisive response. The National Emergencies Act (NEA) of 1976 outlines the procedural formalities for invoking these powers.

Since the enactment of the NEA, every US President has declared multiple national emergencies, with 60 emergencies declared as of March 2020, and more than 30 still in effect. The Act empowers the President to activate over 130 emergency powers, ranging from suspending laws regulating chemical and biological weapons to controlling domestic transportation and seizing Americans' private property.

The President's authority to declare a national emergency and activate these powers is subject to certain conditions. Firstly, the President must specify the provisions being activated and notify Congress. Secondly, the President is required to transmit a report to Congress within 90 days after the end of each six-month period of the emergency, detailing the expenditures directly attributable to the exercise of emergency powers.

While the ability to declare a national emergency provides the President with essential tools to address urgent situations, it also carries the risk of executive overreach. To address this concern, Congress initially retained the power to terminate a national emergency with a majority vote through a concurrent resolution. However, the Supreme Court declared such "legislative vetoes" unconstitutional in 1983, leaving a gap in the system's ability to check executive power.

In recent years, there have been bipartisan efforts to reassert congressional authority over emergency declarations, introducing legislation that would require congressional approval for extending emergencies beyond an initial 30-day period.

Congressional oversight

The US Constitution does not explicitly mention presidential emergency powers, and presidents can only claim such authority is implied or inherent. The emergency powers described in the Constitution are actually assigned to Congress, which has the power to delegate and withdraw these powers.

Congress has the authority to regulate and oversee the use of emergency powers by the President. This includes the power to approve or reject a president's declaration of a national emergency. Congress can also place restrictions on the scope and duration of emergency powers. For example, the National Emergencies Act of 1976 was intended to set limits on the President's power to declare national emergencies. However, it has been criticised for providing a largely unregulated way for presidents to take unilateral action.

In addition to formal procedures, Congress can also exercise oversight through legislative delegations and constitutional interpretation. Over the past 230 years, Congress has made numerous delegations of authority to the President in times of national emergency. However, this has led to concerns about the concentration of power in the executive branch and the potential for abuse.

To address these concerns, there have been proposals for reforms to strengthen Congress's role in overseeing emergency powers. For example, some have suggested that Congress should be required to approve a president's emergency declaration within 30 days, otherwise it would terminate. Others have called for a restoration of the Constitution's authority and a reduction in the vast emergency powers delegated to the President.

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Emergency declarations and their termination

The United States Constitution grants the President the authority to declare a national emergency, enabling them to activate special powers during a crisis. This provision is intended to address sudden and unforeseen events that necessitate an immediate and decisive response. Upon declaring a national emergency, the President gains access to over 130 special authorities, including the ability to shut down communications facilities, control domestic transportation, suspend the Clean Air Act, and seize Americans' private property. Notably, the President can also access powers under the International Emergency Economic Powers Act (IEEPA) and the National Emergencies Act (NEA).

Historically, the first President to declare a national emergency was Abraham Lincoln during the American Civil War. However, starting with Franklin D. Roosevelt in 1933, Presidents began asserting the power to declare emergencies without limiting their scope or duration and without congressional oversight. This trend continued, and as of March 2020, 60 national emergencies had been declared, with 31 of them being renewed annually.

The National Emergencies Act (NEA) of 1976 was enacted to constrain executive overreach by allowing Congress to terminate a national emergency. This could be done through a joint resolution enacted into law or a majority vote via a simple concurrent resolution, which did not require the President's signature. However, the Supreme Court declared such "legislative vetoes" unconstitutional in 1983, making emergencies "easy to declare and hard to stop."

In recent years, there has been bipartisan concern over the executive branch's increased reliance on emergency powers to achieve policy objectives outside of Congress. Senators and Representatives from both parties have introduced the ARTICLE ONE Act to reassert congressional authority over emergency declarations. The Act proposes that a declaration of national emergency by the President would automatically terminate after 30 days unless a majority of members in both chambers of Congress vote to continue. If affirmed, the emergency would persist for one year, after which the President could renew annually with congressional approval.

In conclusion, while the constitutional authority to declare a national emergency is crucial for addressing unforeseen crises, it is equally important to have checks and balances in place to prevent potential abuses of power. The termination of emergency declarations by Congress is a critical aspect of maintaining the balance of power between the executive and legislative branches and safeguarding against infringements on constitutional rights.

Emergency declarations and their abuse

Emergency declarations are a critical tool for addressing sudden and unforeseen events that require an immediate and decisive response. In the US, a national emergency declaration allows the president to temporarily use certain authorities that Congress has previously approved. Congress has delegated at least 136 distinct statutory emergency powers to the President, each available upon the declaration of an emergency. Only 13 of these require a declaration from Congress; the remaining 123 are assumed by an executive declaration with no further Congressional input.

The first president to declare a national emergency was Abraham Lincoln during the American Civil War. However, starting with Franklin D. Roosevelt in 1933, presidents asserted the power to declare emergencies without limiting their scope or duration, without citing the relevant statutes, and without congressional oversight.

Since the National Emergencies Act was passed in 1976, every US president has declared multiple national emergencies. As of March 2020, 60 national emergencies had been declared, with 31 of them being renewed annually. These include eight that were declared before the passage of the 1976 Act.

The Act empowers the President to activate special powers during a crisis but imposes certain procedural formalities when invoking such powers. The powers available under this Act are limited to the 136 emergency powers Congress has defined by law. The legislation was signed by President Gerald Ford on September 14, 1976.

However, the potential for abuse of emergency powers is a cause for concern. In recent years, presidents of both parties have increasingly relied on emergency powers to achieve policy objectives outside of Congress. For example, in 2019, President Trump declared a national emergency at the southern border to override congressional refusal to fund a border wall. In 2021, President Biden relied on emergency powers to attempt to forgive hundreds of billions in student loan debt during the COVID-19 pandemic.

To address this issue, Senators from both parties introduced the bipartisan, bicameral ARTICLE ONE Act to reflect the consensus on the need to reassert congressional authority over emergency declarations. The act would terminate a declaration of a national emergency made by the president after 30 days unless a majority of members in both chambers of Congress vote to continue the emergency.

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