Isabella Carter
The National Emergencies Act (NEA) is a federal law in the United States that was passed in 1976 to formalize the emergency powers of the president and end all previous national emergencies. The Act empowers the president to activate special powers during a crisis but imposes procedural formalities when invoking such powers. The president can declare a national emergency and unlock over 130 special authorities, such as the authority to shut down communications facilities or control domestic transportation. However, there are concerns about executive overreach, and the potential for civil rights and liberties to be violated. The ARTICLE ONE Act has been introduced to reassert congressional authority over emergency declarations and establish clear reporting requirements for the executive branch.
| Characteristics | Values |
|---|---|
| Purpose | To end all previous national emergencies and formalize the emergency powers of the president |
| Activation | Expires if the President expressly terminates the emergency, or does not renew it annually, or if each house of Congress passes a resolution terminating the emergency |
| Termination | Requires a joint resolution passed by both chambers of Congress and signed by the President |
| Powers | 136 emergency powers defined by law, including the ability to shut down communications facilities, draw down equipment from national defense stockpiles, shut down or control domestic transportation, suspend the Clean Air Act, and seize Americans' private property |
| Exemptions | 10 USC 2304(a)(1), 10 USC 3313, 6386(c) and 8313, 12 USC 95(a), 40 USC 278(b), 41 USC 15 and 203, 50 USC 1431–1435 |
| Number of declarations | 60 national emergencies declared as of March 2020, with more than 30 still in effect |
| Examples | 2009 H1N1 Influenza Pandemic, COVID-19 outbreak, national emergency concerning the southern border of the United States |
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What You'll Learn
The National Emergencies Act (NEA)
The Act empowers the president to activate special powers during a crisis but imposes procedural formalities when invoking such powers. These powers include the ability to shut down or control domestic transportation, suspend the Clean Air Act, and even seize Americans' private property. The president must specify the provisions activated and notify Congress. An activation would expire if the President expressly terminated the emergency, did not renew it annually, or if Congress passed a resolution terminating it.
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. Before the NEA, presidents asserted the power to declare emergencies without limiting their scope or duration, without citing relevant statutes, and without congressional oversight.
Certain emergency authorities were exempted from the Act, including those regulating national defense contracts, the promotion and separation of military officers, transactions in foreign gold and silver, federal property purchases, and claims against the federal government. The list of exceptions has been revised over time.
Since its enactment, the NEA has been invoked numerous times, including in response to the 2009 H1N1 Influenza Pandemic, Hurricanes Andrew and Iniki in 1992, and Hurricane Katrina in 2005. As of March 2020, 60 national emergencies have been declared, with over 30 still in effect.
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Presidential emergency powers
The National Emergencies Act (NEA) is a federal law in the United States that was passed in 1976 to formalize the emergency powers of the president and end all previous national emergencies. The Act empowers the president to activate special powers during a crisis but imposes procedural formalities when invoking such powers.
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 relevant statutes, and without congressional oversight.
Upon declaring a national emergency, over 130 special authorities are immediately unlocked, enabling the president to intervene in ways unavailable to them outside of an emergency declaration. These powers include the authority to shut down communications facilities, control domestic transportation, suspend the Clean Air Act, and even seize Americans' private property.
The National Emergencies Act constrains executive overreach by allowing Congress to terminate a national emergency with a majority vote through a concurrent resolution, which does not require the president's signature. However, the Supreme Court declared such "legislative vetoes" unconstitutional in 1983, leaving a regime that makes emergencies “easy to declare and hard to stop.”
To address this concern, 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. This 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.
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Congress's role in national emergencies
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 certain procedural formalities when invoking such powers.
Congress has a significant role in the National Emergencies Act. Firstly, it was Congress that passed the Act in 1976 to constrain executive overreach and prevent presidents from abusing their emergency powers. Congress can terminate an emergency declaration with a joint resolution enacted into law. A joint resolution passed by both chambers requires presidential signature, giving the president veto power over the termination. This means that a two-thirds majority in both houses is required in the case of a contested termination.
The Act also requires the President and executive agencies to maintain records of all orders and regulations that proceed from the use of emergency authority, and to regularly report the cost incurred to Congress. 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 National Emergencies Act was passed due to concern that a declaration of "emergency" for one purpose should not invoke every possible executive emergency power. A prior Senate investigation had found 470 provisions of federal law that a President might invoke via a declaration of emergency. The Act repealed several of these provisions and stated that prior emergency declarations would no longer give force to those provisions that remained.
In recent years, presidents have taken efforts to new heights, with President Trump declaring a national emergency at the southern border to override congressional refusal to fund a border wall, and President Biden relying on emergency powers to attempt to forgive student loan debt during the COVID-19 pandemic.
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Emergency declarations
The National Emergencies Act (NEA) is a federal law passed in the United States in 1976 to formalize the emergency powers of the president and end all previous national emergencies. The Act empowers the president to activate special powers during a crisis but imposes procedural formalities when invoking such powers.
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 relevant statutes, and without congressional oversight.
The National Emergencies Act constrains executive overreach by allowing Congress to terminate a national emergency with a majority vote through a concurrent resolution, which does not require the president's signature. An activation would expire if the President expressly terminated the emergency, did not renew it annually, or if each house of Congress passed a resolution terminating it. Congress can also terminate an emergency declaration with a joint resolution enacted into law, which requires a presidential signature.
The declaration of a national emergency unlocks over 130 statutory powers for the president, including the ability to shut down or control domestic transportation, suspend the Clean Air Act, and seize Americans' private property. These powers are critical for addressing sudden and unforeseen events that require an immediate and decisive response. However, they can also be dangerous in a democratic system if they are not subject to checks and accountability.
Since the 1983 Supreme Court decision that declared congressional termination of emergencies unconstitutional, administrations have used the NEA to circumvent the presidency's normal legal constraints to achieve policy outcomes that cannot pass through Congress.
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Historical context
The National Emergencies Act (NEA) was signed into law by President Gerald Ford on September 14, 1976. The Act was passed to end all previous national emergencies and formalize the emergency powers of the president.
The first president to declare a national emergency was Abraham Lincoln during the American Civil War. Starting with Franklin D. Roosevelt in 1933, presidents asserted the power to declare emergencies without limiting their scope or duration, without citing relevant statutes, and without congressional oversight. 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.
In 1973, a Senate investigation found that four declared emergencies remained in effect: the 1933 banking crisis, a 1950 emergency regarding the Korean War, a 1970 emergency regarding a postal workers strike, and a 1971 emergency in response to inflation. The investigation also found that many provisions of statutory law are contingent on a declaration of national emergency, as many as 500 by one count.
In 1971, Senator Charles Mathias (R-MD) first proposed a committee to investigate national emergency powers. The administration's ability to circumvent Congress under the authority of a century-old law troubled him. He had developed a reputation among his colleagues as a checks and balances proselytizer, routinely sermonizing that growing executive power threatened the health of constitutional government.
In 1973, the Senate assigned a small temporary committee, the Special Committee on the Termination of the National Emergency (renamed in 1974), to investigate outdated emergency powers granted to presidents by Congress in the previous half century. The committee's findings convinced Congress to pass the National Emergencies Act in 1976. The House introduced the Act in 1975, and the Senate passed an amended version in August 1976. The Act ended four existing states of emergency and instituted accountability and reporting requirements for future emergencies.
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Frequently asked questions
The National Emergencies Act (NEA) is a federal law 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. It also allows Congress to terminate an emergency declaration with a joint resolution enacted into law.
The President can shut down communications facilities, draw down equipment from national defense stockpiles, suspend the Clean Air Act, and seize Americans' private property.
The National Emergencies Act was passed to constrain executive overreach and allow Congress to terminate a national emergency with a majority vote. However, the Supreme Court later declared such "legislative vetoes" unconstitutional, leaving a regime where emergencies are “easy to declare and hard to stop."
Some examples include the 2009 H1N1 Influenza Pandemic, the COVID-19 outbreak in 2020, and a national emergency concerning the southern border of the United States in 2019.
