Malcolm Rivera
A national emergency in the US can be declared by the President without a specific request from a state. This declaration is usually made in response to an unexpected crisis that requires a faster response than Congress can provide. The President can declare a national emergency with an executive order, and this declaration can be renewed annually. The National Emergencies Act, the Public Health Service Act, and the Stafford Act are some laws that establish frameworks for different kinds of emergencies. The declaration of a national emergency does not automatically activate emergency powers, and the President must specify which authorities are activated.
| Characteristics | Values |
|---|---|
| Declaration of a national emergency | Made by the President |
| Made by the Secretary of the U.S. Department of Health and Human Services | |
| Made by the Governor of a State | |
| Made by Congress | |
| Powers | Activation of state emergency response plans |
| Use of certain funding | |
| Deployment of personnel, equipment, and stockpiles | |
| Take over domestic communications | |
| Seize Americans' bank accounts | |
| Deploy U.S. troops to any foreign country | |
| Use of an unapproved drug, device, or biological product | |
| Suspension of the Clean Air Act implementation plan | |
| Suspension of the operation of provisions regulating the storage, transportation, disposal, procurement, handling, and testing of chemical and biological weapons | |
| Suspension of the Public Health Service | |
| Declare the commissioned corps of the Public Health Service to be a military service |
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What You'll Learn
- The President can declare a national emergency without state consent
- The President gains temporary enhanced executive power
- The National Emergencies Act lacks protections against abuse
- The Insurrection Act gives the President dangerous discretion
- State-declared emergencies allow for Medicaid flexibility
The President can declare a national emergency without state consent
The President of the United States can declare a national emergency without state consent. This was seen in the case of the COVID-19 outbreak, where President Donald Trump declared a national emergency beginning on March 1, 2020, under the National Emergencies Act. The Act authorises the President to declare a national emergency without a specific request from a state.
The National Emergencies Act, in its current form, allows the President to declare emergencies with just a signature on an executive order. This means that the President can declare a national emergency and utilise the available emergency powers without the consent or input of the states.
There are approximately 123 statutory authorities that become available to the President when a national emergency is declared. These powers can be far-reaching and include the ability to take over domestic communications, seize Americans' bank accounts, and deploy US troops to foreign countries.
While some of these powers may be necessary in certain emergency situations, there is a bipartisan consensus that emergency powers should be reformed to restore Congress's role as a check on executive power. The lack of safeguards in the National Emergencies Act has raised concerns about the potential for abuse of power.
It is important to note that when the President declares a national emergency, they must specify the provisions of law under which they or other officers will act. This can be done either in the declaration of a national emergency or through subsequent executive orders published in the Federal Register and transmitted to Congress.
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The President gains temporary enhanced executive power
When the President of the United States declares a national emergency, they gain temporary enhanced executive power. This has been the case on several occasions, including after the terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001, and in response to the COVID-19 outbreak in 2020.
The National Emergencies Act authorises the President to declare a national emergency without a specific request from a state. However, this declaration does not automatically grant any specific emergency powers. Instead, the President must specify which authorities are activated under which provisions of the law. This can be done either in the declaration of a national emergency or through subsequent Executive orders published in the Federal Register and transmitted to Congress.
The Brennan Center's research identified 123 statutory authorities that become available to the President when a national emergency is declared. While some of these powers are sensible and measured, others are more controversial. For example, the President could take control of domestic communications, seize Americans' bank accounts, and deploy US troops to foreign countries. Given the breadth of these powers, there is bipartisan consensus that reforms are needed to restore Congress's role as a check on executive power and prevent potential abuses.
During a national emergency, the President may also use the Public Health Service to promote the public interest, declare the commissioned corps of the Public Health Service to be a military service, and suspend the operation of provisions regulating chemical and biological weapons, including the prohibition on testing on human subjects.
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The National Emergencies Act lacks protections against abuse
The National Emergencies Act (NEA) has been the most potent statutory framework for the exercise of emergency powers since 1976. The Act gives the President near-total discretion to declare a national emergency, with no substantive criteria that must be met. This has been the case since Franklin D. Roosevelt in 1933, when presidents began asserting the power to declare emergencies without limiting their scope or duration, without citing relevant statutes, and without congressional oversight.
The NEA has been criticised for lacking protections against abuse. The declaration of a national emergency unlocks over 130 enhanced powers for the President, many of which have a dangerous potential for abuse. For example, the President can take over or shut down communications facilities, seize Americans' assets without judicial process, and exert almost unlimited control over domestic transportation. There is even a law that allows the President to suspend the prohibition on government testing of chemical and biological agents.
The NEA does not limit the President's emergency declaration power, and there are no checks and balances in place to prevent abuse. While the Supreme Court has rejected the notion that emergencies give the President license to defy Congress, it has also never definitively resolved whether the President has any inherent constitutional powers to take extraordinary action during emergencies. This lack of clarity, combined with the broad powers granted by the NEA, creates a system vulnerable to executive abuse.
There have been attempts to reform the NEA and enhance Congress's role as a check against abuse of authority. The Brennan Center for Justice, for example, has provided research and testimony that have helped spur a national conversation about the NEA and drawn bipartisan support for reform. Congress has also passed resolutions to end specific actions taken by the executive branch during a national emergency, such as during the Trump administration's support for Saudi Arabia's military operations in Yemen. However, these attempts have been vetoed or blocked, highlighting the inertia that still exists in addressing this issue.
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The Insurrection Act gives the President dangerous discretion
In the United States, a national emergency can be declared by the President in response to a crisis that poses a significant threat to the nation's security, foreign policy, economy, or public health. This declaration grants the President access to additional powers and resources to address the emergency effectively. One such power is the Insurrection Act, which gives the President the authority to deploy the military domestically and use it for civilian law enforcement.
The Insurrection Act, originally enacted in 1792, is intended to provide a legal framework for the President to respond to domestic crises that exceed the capacity of civilian authorities. However, the Act has come under scrutiny due to its vague and broad language, which gives the President significant discretion in interpreting and applying its provisions. The Act fails to adequately define key terms such as "insurrection," "rebellion," and "domestic violence," leaving it open to interpretation by the President.
Section 251 of the Insurrection Act allows the President to deploy troops if a state requests federal aid to suppress an insurrection or domestic violence. This provision has been the most frequently invoked, as it requires the consent of state authorities. However, the lack of clear guidelines makes it difficult to determine the appropriate use of this section, leaving the decision largely to the President's discretion.
The second part of Section 253 further illustrates the vague nature of the Insurrection Act. It permits the President to deploy troops to suppress "any insurrection, domestic violence, unlawful combination, or conspiracy" that obstructs the execution of federal laws or impedes the course of justice. The broad language of this section has raised concerns that it could authorize the use of military force against individuals or small groups conspiring to break federal law. Again, the absence of clear definitions and limitations leaves the interpretation and application of this section to the President's discretion.
The Insurrection Act has been criticized for granting the President excessive power without sufficient checks and balances. While the Supreme Court has clarified that it can review the lawfulness of the military's actions, the President's sole authority to decide when and where to deploy troops under the Act remains a concern. The lack of precise definitions and limitations on the use of the Insurrection Act has led to calls for reform, aiming to better define the circumstances under which the President can exercise this significant power.
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State-declared emergencies allow for Medicaid flexibility
In the United States, a national emergency can be declared by the President when there is a threat to national security, foreign policy, or the economy. For instance, former President George W. Bush declared a national emergency following the terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001. Similarly, former President Donald J. Trump declared a national emergency in response to the COVID-19 outbreak in the United States, beginning March 1, 2020.
When a national emergency is declared, states may seek additional flexibility in their Medicaid programs. Medicaid is a federal-state health insurance program that provides coverage for low-income individuals and families. During emergencies, states can apply for waivers to temporarily modify certain requirements of the program. These waivers are intended to provide states with the flexibility needed to address the specific emergency effectively.
For example, during the COVID-19 pandemic, states sought Medicaid waivers to ease licensing restrictions on healthcare providers, allowing them to bring in additional doctors and other providers to meet the increased demand for medical services. Waivers also enabled nursing homes and other residential facilities to move patients to alternate settings, providing more capacity for emergency care.
Florida, for instance, utilized waivers to remove prior authorization requirements, streamline enrollment processes for medical providers, and extend certain deadlines. These measures ensured that all medically necessary services for testing and treatment could be provided to the state's Medicaid population.
State-declared emergencies, therefore, allow for Medicaid flexibility by providing states with the necessary tools and regulatory relief to swiftly address the specific emergency at hand, ensuring that vulnerable citizens receive the care they need.
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Frequently asked questions
The President of the United States can declare a national emergency.
A national emergency can be declared in the event of unexpected crises that are moving too fast for Congress to respond. For example, the terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001, were declared a national emergency. More recently, the COVID-19 outbreak was also declared a national emergency.
When a national emergency is declared, the President gains access to statutory powers that can be used to address the emergency. These include the power to deploy US troops to any foreign country, take over domestic communications, and seize Americans' bank accounts.
