Emergency Powers: Can The Constitution Be Suspended?

The U.S. Constitution does not outline a separate regime for emergencies, and it does not specify which rights may be suspended during a national emergency. However, it does contain certain powers for dealing with urgent threats, which are assigned to Congress, such as the ability to suspend the writ of habeas corpus, allowing the government to imprison people without judicial review. In the U.S., a national emergency declaration allows the president to temporarily use certain authorities that Congress has previously approved, such as the authority to shut down communication facilities or control transportation. While the Constitution itself does not specify which rights may be suspended, the declaration of a national emergency can grant the president access to over 130 statutory powers, which could potentially be used to violate civil rights and liberties.

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The US Constitution does not specify a separate regime for emergencies

The Suspension Clause protects liberty by safeguarding the privilege of the writ of habeas corpus. It stipulates that the federal government may not suspend this privilege except under extraordinary circumstances, such as when a rebellion or invasion occurs and public safety is at risk. While the Clause does not specify which branch of government can suspend the privilege, it is generally agreed that only Congress has this authority. Notably, President Abraham Lincoln unilaterally suspended the privilege during the Civil War, provoking controversy. However, Congress effectively endorsed his action by passing a statute permitting suspension.

The US Constitution grants Congress the authority to regulate foreign and interstate commerce, tax and spend for "the common Defense and general Welfare". This enables Congress to enact laws governing the entry of individuals into the country or their travel across state lines, as well as providing financial assistance to states and individuals. While these powers are vested in Congress, the president can still respond to a national emergency through executive action.

The National Emergencies Act (NEA) of 1976 was enacted to curb executive overreach by empowering Congress to terminate a national emergency with a majority vote via a concurrent resolution. However, the Supreme Court's subsequent declaration of such "legislative vetoes" as unconstitutional has weakened this check on presidential power. As a result, emergencies have become "easy to declare and hard to stop," raising concerns about potential civil liberties violations under an authoritarian president.

To address these concerns, bipartisan legislation like the ARTICLE ONE Act has been proposed to reinforce congressional authority over emergency declarations and establish reporting requirements for the executive branch.

The National Emergencies Act (NEA) and presidential powers

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

The Act authorizes the president to activate emergency provisions of law via an emergency declaration, but only on the condition that the president specifies the provisions so activated and notifies Congress. An activation would expire if the president expressly terminated the emergency, or did not renew it annually, or if each house of Congress passed a resolution terminating the emergency.

The number of emergency powers available to the president upon declaring a national emergency is disputed, with figures ranging from 130 to 150. These powers include the ability to shut down or control domestic transportation, suspend the Clean Air Act, seize Americans' private property, shut down communications facilities, and draw down equipment from national defense stockpiles.

The NEA was passed because Congress recognized that delegating these powers to the executive branch was risky, and there was a need to constrain executive overreach. However, the Supreme Court declared congressional termination of emergencies with a simple concurrent resolution unconstitutional in 1983, making emergencies "easy to declare and hard to stop." Since then, administrations have used the NEA to circumvent the presidency's normal legal constraints to achieve policy outcomes that cannot pass through Congress.

To address this, Senators and Representatives 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 national emergency made by the president after 30 days unless a majority of members in both chambers of Congress vote to continue the emergency.

Historical examples of the suspension of habeas corpus

The suspension of habeas corpus has occurred several times throughout history, often during times of war or civil unrest. Here are some notable examples:

American Civil War (1861-1865)

During the American Civil War, President Abraham Lincoln authorized the suspension of habeas corpus between Washington, D.C., Philadelphia, and later New York City. This decision was made to try large numbers of civilian rioters in military courts and prevent the movement of Confederate troops on Washington. Lincoln's suspension of habeas corpus was highly controversial and sparked debates about the constitutionality of his actions. The Habeas Corpus Suspension Act of 1863 further authorized the president to suspend the right of habeas corpus during the Civil War.

Confederate States of America (1861-1865)

The Confederate Congress passed legislation that authorized the suspension of habeas corpus in certain cases. Confederate President Jefferson Davis suspended habeas corpus in parts of Virginia, Arkansas, Indian Territory, and East Tennessee. These suspensions were used to target suspected Unionists and political prisoners, such as Thomas A.R. Nelson, who was arrested and held as a political prisoner before being released on the condition that he cease criticizing the Confederate government.

World War II

During World War II, the writ of habeas corpus was suspended in Hawaii, which was then a U.S. territory. This suspension was made pursuant to a section of the Hawaiian Organic Act of 1900.

Other Examples

• Nine counties in South Carolina: The writ was suspended in nine counties in South Carolina to combat the Ku Klux Klan, pursuant to the Act of April 20, 1871.
• Philippines: Habeas corpus was suspended in the Philippines in 1905, according to the Act of July 1, 1902.
• Guantanamo Bay: The Military Commissions Act of 2006 amended the law to include pending cases where detainees had been determined to be enemy combatants, impacting habeas corpus rights for those held at Guantanamo Bay.

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The impact of COVID-19 and other health emergencies

The COVID-19 pandemic has had a significant impact on constitutional rights and freedoms around the world. While the constitution is not suspended during a national emergency, the declaration of a national emergency does grant the president access to additional powers that can impact constitutional rights.

In India, the pandemic and the government's response to it have affected or abrogated basic fundamental rights guaranteed by the constitution. The right to health, shelter, food, dignity, and speedy trial have all been impacted by the pandemic. The right to trade, freedom of movement, religion, and education have also been impaired. The pandemic has also led to the suspension of labour laws, affecting the right to peaceful protest and assembly. The Indian government's response to the pandemic, including a nationwide lockdown, has been praised for helping to slow the spread of the virus. However, this has also created difficulties for people, particularly those who rely on daily wages for income and those who need regular medical care for conditions other than COVID-19.

In the United Kingdom, the pandemic has had a significant impact on the courts and tribunals system in England and Wales. The pandemic has exacerbated pre-existing challenges, such as reduced funding and court closures, leading to a detrimental impact on the flow of cases. The interruption to the normal operation of the courts has worsened barriers to accessing legal representation and may result in longer waiting times for justice.

The declaration of a national emergency in response to the COVID-19 pandemic has also had implications for democratic systems. In the United States, for example, the declaration of a national emergency grants the president access to over 130 special authorities, such as the authority to shut down communications facilities or control domestic transportation. While Congress has the power to terminate a national emergency with a majority vote, the potential for executive overreach and the abuse of civil rights and liberties is a cause for concern.

Examples of states of emergency in other countries

In a state of emergency, the president gains access to over 130 special authorities, such as the ability to shut down communication facilities, control domestic transportation, suspend the Clean Air Act, and seize Americans' private property. While the constitution does not get suspended, civil rights and liberties may be violated.

Turkey

Since the foundation of the Republic of Turkey in 1923, the military has conducted three coups d'état and announced martial law. The latest state of emergency was declared by President Recep Tayyip Erdoğan on July 20, 2016, following a failed coup attempt on July 15, 2016, by a faction of the country's armed forces. It was lifted on July 18, 2018.

United Kingdom

In the UK, only the British Sovereign or, in exceptional circumstances, a Minister of the Crown has the power to introduce emergency regulations under the Civil Contingencies Act 2004. This could be in response to a broad range of emergencies, including war, attack by a foreign power, terrorism, or events threatening serious damage to human welfare or the environment.

Romania

Romania has two levels of emergency: the state of alert and the state of emergency. The former is a non-military situation enforced by a prefect, with roadblocks and the temporary use of any utilitarian vehicle or equipment by the state. The latter can only be enforced by the President of Romania with parliamentary approval. The military becomes the upper form of control, and the civilian population is subject to strict regulations.

Trinidad and Tobago

On August 4, 1995, a state of emergency was declared by Prime Minister Patrick Manning to remove the Speaker of the House, Occah Seapaul, during a constitutional crisis. On August 22, 2011, Prime Minister Kamla Persad-Bissessar announced another state of emergency to crack down on drug and firearm trafficking and gangs.

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