Malcolm Rivera
The National Emergencies Act (NEA) is a federal law enacted in 1976 to end all previous national emergencies and formalize the emergency powers of the president. As of April 2025, 90 national emergencies have been declared, with 49 of them being renewed annually. These declarations unlock over 130 special authorities for the president, such as the authority to shut down communications facilities or control domestic transportation. While these powers are intended to address sudden and unforeseen events, they can also be subject to abuse, bypassing congressional action or infringing on constitutional rights. To address these concerns, members of Congress have introduced the ARTICLE ONE Act to reassert congressional authority over emergency declarations, requiring a majority vote in both chambers to continue an emergency beyond 30 days.
| Characteristics | Values |
|---|---|
| Purpose | Addressing sudden and unforeseen events that require an immediate, decisive response |
| Declaration | Made by the President, with the exception of 13 that require a declaration from Congress |
| Powers | Over 130 special authorities, including shutting down communications and drawing down equipment from national defense stockpiles |
| Termination | Requires a joint resolution enacted into law or a majority vote through a concurrent resolution |
| Limitations | Powers are limited to the 137 emergency powers defined by Congress |
| Renewal | Can be renewed annually |
| Examples | COVID-19 outbreak, terrorist attacks on the World Trade Center, southern border crisis |
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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. It authorizes the President to activate emergency provisions of law via an emergency declaration on the condition that they specify the provisions being activated and notify Congress.
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. Congress has delegated at least 150 distinct statutory emergency powers to the President, each available upon the declaration of an emergency. Only 13 of these require a declaration from Congress, while the remaining 137 are assumed by an executive declaration with no further Congressional input. These powers include the ability to shut down or control domestic transportation, suspend the Clean Air Act, and even seize Americans' private property.
The NEA has been used by presidents of both parties to achieve policy objectives outside of Congress. For example, in 2019, President Trump declared a national emergency at the southern border to secure funding for a border wall, which Congress had expressly denied. In 2021, President Biden relied on emergency powers to attempt to forgive student loan debt during the COVID-19 pandemic.
There have been concerns about the lack of adequate safeguards in the NEA to prevent abuse of power. While Congress can terminate an emergency declaration with a joint resolution, the Supreme Court declared such "legislative vetoes" unconstitutional in 1983. This has made it easier for presidents to declare emergencies and harder to stop them.
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Presidential emergency powers
The US Constitution does not explicitly grant the president additional powers in the event of a national emergency. However, Congress may grant the president broader powers to manage the national economy and protect the security of the nation during a crisis.
The National Emergencies Act (NEA) was enacted 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 requires certain procedural formalities when invoking such powers. There are over 130 special authorities that the president can access, such as the power to shut down communications facilities or draw down equipment from national defense stockpiles.
The activation of emergency powers would expire if the president expressly terminated the emergency, did not renew it annually, or if Congress passed a joint resolution to terminate the emergency. This joint resolution requires a presidential signature, giving the president veto power over the termination.
The use of emergency powers by presidents has been a contentious issue. For example, President Trump declared a national emergency to fund his border wall after Congress denied him the funds. In another instance, President Biden used the COVID-19 pandemic emergency to cancel student debt.
To prevent the misuse of presidential emergency powers, organizations like Protect Democracy have filed amicus briefs with the Supreme Court to challenge the use of these powers. The Brennan Center for Justice is also working to fix the legal framework for emergency powers and enhance Congress's role as a check against the abuse of authority.
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Congress's role
Congress has played a significant role in shaping and delegating powers related to national emergencies. Over time, it has passed various laws and acts that define and outline the President's authority during such crises.
The National Emergencies Act (NEA), enacted in 1976, is a key example of Congress's role. The NEA was passed to end all previous national emergencies and formalize the President's emergency powers. It empowers the President to activate special authorities during a crisis while imposing procedural requirements when invoking such powers. The NEA outlines over 130 statutory powers that the President can access during a national emergency. However, the NEA has been criticised for lacking adequate safeguards to prevent executive overreach, as it allows the President to declare and renew emergencies with relative ease.
Congress has also established other emergency power frameworks beyond the NEA, such as the Public Health Service Act and the Stafford Act, which replace the Disaster Relief Act of 1974. These acts provide additional tools and authorities for responding to specific types of emergencies, such as public health crises and natural disasters.
In total, Congress has delegated at least 150 distinct statutory emergency powers to the President, with only 13 requiring a declaration from Congress itself. This highlights the substantial role Congress has played in shaping the President's emergency authorities.
Recognising the potential for executive overreach, members of Congress from both parties have introduced bipartisan legislation, such as the ARTICLE ONE Act, to reassert congressional authority over emergency declarations. This act aims to terminate a presidential declaration of a national emergency after 30 days unless a majority of both chambers of Congress vote to continue it.
Furthermore, Congress has the authority to terminate a national emergency declaration through a joint resolution enacted into law, as outlined in the NEA. This power allows Congress to act as a check on the President's emergency powers, ensuring they are used appropriately and within the intended scope.
In conclusion, while the President has significant authority during national emergencies, Congress plays a crucial role in defining, delegating, and overseeing these powers. The dynamic between these two branches of government is essential for maintaining a balance of powers and protecting civil liberties during times of crisis.
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Historical examples
The first President to issue an emergency proclamation was Woodrow Wilson, who on February 5, 1917, declared a national emergency arising from the insufficiency of maritime tonnage to carry the products of American industries to their consumers. The first president to declare a national emergency was Abraham Lincoln, during the American Civil War. Lincoln also suspended habeas corpus in 1861.
Franklin D. Roosevelt asserted the power to declare emergencies without citing relevant statutes or congressional oversight in 1933, and a national emergency was declared in response to the banking crisis and gold hoarding of that year.
Harry Truman ordered the Secretary of Commerce to seize control of the steel mills amid a 1952 wartime strike.
In 1970, a national emergency was declared in response to a postal workers' strike.
In 2005, a national emergency was declared in response to the conditions caused by Hurricane Katrina.
In 2019, President Trump declared a national emergency at the southern border to secure funding for a border wall that had been expressly denied by Congress.
In 2021, President Biden relied on emergency powers to attempt to forgive student loan debt during the COVID-19 pandemic.
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Reforming emergency powers
The United States Constitution grants the President emergency powers, allowing them to activate special powers during a crisis. However, the broad scope of these powers has led to concerns about potential presidential overreach.
The National Emergencies Act (NEA) was enacted in 1976 to formalize and restrict the President's emergency powers. It requires the President to specify the provisions activated and notify Congress. An emergency declaration can be terminated by the President or if each house of Congress passes a joint resolution.
Despite the NEA, there are still concerns about the potential for abuse of emergency powers. As of March 2020, 60 national emergencies have been declared, with over 30 still in effect. The President's ability to declare emergencies without citing relevant statutes or congressional oversight has led to calls for reform.
In 2022, Elizabeth Goitein, Co-Director of the Brennan Center's Liberty and National Security Program, urged the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties to reform the NEA and restore congressional checks on executive power. She highlighted the need to address specific powers, such as the ability to deploy the military domestically and control communications.
The REPUBLIC Act, or Reforming Emergency Powers to Uphold the Balances and Limitations Inherent in the Constitution Act, has been proposed to address these concerns. It includes provisions for congressional review of national emergencies, reporting requirements, and limitations on certain powers.
While there is a growing consensus for reform, no concrete policy changes have been implemented. The challenge remains to balance the need for emergency powers with checks and balances to prevent their abuse.
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Frequently asked questions
A national emergency is a critical tool for addressing unforeseen events that require an immediate, decisive response.
The President can declare a national emergency.
The President has access to over 130 special authorities, including the power to shut down communications facilities, control domestic transportation, suspend the Clean Air Act, and seize Americans' private property.
Yes, Congress can terminate a national emergency with a joint resolution enacted into law.
Examples of national emergencies include the COVID-19 outbreak, the September 11 terrorist attacks, and the southern border crisis.
