Omar Bennett
In the United States, the President can declare a national emergency, which grants them access to over 130 special authorities, such as the power to shut down communications facilities or deploy the Armed Forces. This is intended to allow the President to respond quickly and decisively to sudden and unforeseen events, such as natural disasters or public health emergencies. However, there are concerns that these powers could be used to bypass Congress or infringe on constitutional rights, and recent Presidents have used emergency powers to achieve policy objectives that could not pass through Congress, such as funding for a border wall or student loan forgiveness. Ultimately, it is up to the President to determine what constitutes a national emergency, but Congress can terminate a national emergency with a majority vote, and there are ongoing efforts to increase Congressional oversight of emergency declarations.
| Characteristics | Values |
|---|---|
| Authority to declare a national emergency | The President |
| Authority to declare a national emergency in the context of a public health emergency | The Secretary of Health and Human Services |
| Authority to declare a national emergency in the context of a disaster | A Governor can petition the President |
| Authority to terminate a national emergency | Congress, with a joint resolution enacted into law |
| Authority to terminate a national emergency | Each House of Congress, with a concurrent resolution |
| Authority to prescribe the circumstances constituting a national emergency | The Secretary |
| Authority to waive procedural and substantive limitations in statutes granting the President broad authority to create, maintain, protect, expand, or restore domestic industrial base capabilities | The President |
| Authority to suspend the operation of statutes imposing distribution in grade requirements on the Navy | The President |
| Authority to order an invention kept secret during a national emergency | The Commissioner of Patents |
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What You'll Learn
- The President's role in declaring a national emergency
- Congress's powers to terminate an emergency declaration
- The National Emergencies Act (NEA) and its provisions
- The impact of emergency declarations on citizens' rights
- The role of the Secretary of Health and Human Services in public health emergencies
The President's role in declaring a national emergency
The National Emergencies Act (NEA) grants the President access to over 130 special authorities, including the power to shut down communications, seize Americans' bank accounts, deploy troops, and suspend the Clean Air Act. These powers are intended to address sudden and unforeseen events requiring immediate action, such as natural disasters and public health emergencies.
While Congress has delegated these powers, recognising that it may not always be able to act swiftly enough, it has also attempted to curb potential abuses of power. The NEA allows Congress to terminate a national emergency with a joint resolution enacted into law, requiring a presidential signature or a two-thirds majority in both houses to override a veto.
The Brennan Center for Justice has catalogued 123 statutory authorities that become available to the President during a national emergency, highlighting the need for adequate safeguards to prevent abuses of power. Senators and Representatives from both parties have introduced the ARTICLE ONE Act, aiming to reassert congressional authority by automatically terminating a national emergency declaration after 30 days unless Congress votes to continue.
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Congress's powers to terminate an emergency declaration
Congress can terminate a national emergency declaration by passing a joint resolution enacted into law. This joint resolution requires a majority vote in both chambers of Congress and the president's signature, giving the president veto power over the termination. If the president vetoes the joint resolution, Congress can override the veto with a two-thirds majority vote in both houses.
The National Emergencies Act (NEA), passed in 1976, constrains executive overreach by allowing Congress to terminate a national emergency declaration. The NEA requires the president to specify the emergency powers they intend to activate and to notify Congress. The NEA also requires the president and executive agencies to maintain records of all orders and regulations made under emergency authority and to regularly report the costs incurred to Congress.
In recent years, there has been a bipartisan consensus to reform emergency powers and restore Congress's role as a check on executive power. Senators and Representatives from both parties have introduced legislation, such as the ARTICLE ONE Act, to reassert congressional authority over emergency declarations. This 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.
Historically, presidents have had broad powers during a declared national emergency, with access to over 130 special authorities. These powers have been used to bypass congressional action and infringe on constitutional rights. For example, President Trump declared a national emergency at the southern border to secure funding for a border wall after Congress had expressly denied funding. More recently, President Biden relied on emergency powers to attempt to forgive student loan debt during the COVID-19 pandemic.
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The National Emergencies Act (NEA) and its provisions
The National Emergencies Act (NEA) was enacted on September 14, 1976, by President Gerald Ford 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.
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 was concerned that a declaration of "emergency" for one purpose should not invoke every possible executive emergency power. A 1973 Senate investigation found four declared emergencies that 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 Act authorizes the President to activate emergency provisions of law via an emergency declaration on the condition that the President specifies the provisions activated and notifies Congress. 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 the emergency. The powers available when the President declares a national emergency under this Act are limited to the 137 emergency powers Congress has defined by law.
Certain emergency authorities were exempted from the Act, including:
- 10 USC 2304(a)(1) – allowing exemption of national defense contracts from competitive bidding
- 10 USC 3313, 6386(c) and 8313 – regulating the promotion, retirement, and separation of military officers
- 12 USC 95(a) – regulating transactions in foreign gold and silver
- 40 USC 278(b) – regulating federal property purchases and contracts
- 41 USC 15 and 203 – limiting the assignment of claims against the federal government
- 50 USC 1431–1435 – enabling the President to make national defense contracts outside of otherwise applicable rules
The list of exceptions has been revised over time. For example, Public Law 95-223 (1977) repealed the emergency clause of 12 USC 95(a) and arranged for its authority to expire according to the normal provisions of the NEA.
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The impact of emergency declarations on citizens' rights
During a state of emergency, certain constitutional rights may be temporarily suspended or limited. These include rights related to freedom of movement, residence, assembly, and profession, as well as political rights such as the right to a fair election and the right to a functioning parliament. In some cases, emergency measures may also impact citizens' legal rights, including the right to a fair trial, protection from self-incrimination, and protection from inhumane punishment.
The specific rights affected and the extent of the limitations depend on the nature and severity of the emergency, as well as the legal framework within which the emergency is declared. For example, in the case of a natural disaster, rights related to residence and property may be limited, while a public health emergency may result in the suspension of certain civil liberties to protect public health and safety.
In democratic states, legal definitions and procedural requirements are often in place to govern the declaration of emergencies and the use of emergency powers. These measures aim to ensure that citizens' rights are protected even during crises. For example, the National Emergencies Act in the United States imposes procedural requirements on the President's exercise of emergency powers. Similarly, the Indian Constitution's emergency provisions require written advice from the Cabinet for declaring a National Emergency and prohibit the suspension of certain fundamental rights, even during a crisis.
However, despite these safeguards, the declaration of an emergency can still have negative consequences for citizens' rights. The very nature of emergency measures can infringe on civil liberties, and there is a risk of abuse of power by governing authorities. As seen in the 1975 Indian Emergency, a declaration of emergency can be used to justify the suspension of legal remedies and the violation of basic human rights. Thus, it is crucial to have robust checks and balances in place to ensure that emergency powers are used appropriately and that citizens' rights are protected even during exceptional circumstances.
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The role of the Secretary of Health and Human Services in public health emergencies
The Secretary of Health and Human Services (HHS) is the head of the United States Department of Health and Human Services and serves as the principal advisor to the president on all health matters. The secretary is appointed by the president with the advice and consent of the US Senate Committee on Finance and the Health, Education, Labor and Pensions Committee.
The HHS secretary has a significant role in protecting and preserving the health of the nation. Their direction influences America's ability to prepare for health threats, enhance the water supply, and address other public health measures. The secretary is also responsible for administering and regulating Medicare, Medicaid, and the Affordable Care Act (ACA).
In the context of public health emergencies, the HHS secretary has the legal authority to prepare for and respond to such emergencies. They can declare a public health emergency to control communicable diseases and manage other public health hazards. For example, during the COVID-19 pandemic, the HHS secretary authorized the FDA to issue an emergency use authorization for the COVID-19 vaccines.
Additionally, the HHS secretary can waive or modify certain Medicare, Medicaid, and HIPAA requirements during public emergencies to ensure the availability of healthcare items and services. They can also coordinate with federal, state, and local bodies to support decision-makers in emergencies.
The secretary's role in public health emergencies is crucial in safeguarding the health and well-being of Americans. They have the power to fund and implement critical programs and initiatives, as well as advise the president on the necessary actions to protect public health.
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Frequently asked questions
In the United States, the President determines what constitutes a national emergency and can declare one.
The President has access to emergency powers, which include suspending laws regulating chemical and biological weapons, suspending the Clean Air Act, authorizing military construction projects, and drafting retired Coast Guard officers into active duty.
Yes, Congress can terminate an emergency declaration with a joint resolution enacted into law. Congress can also revoke any outstanding emergency declarations.
A Governor can petition the President for a declaration of major disaster or emergency if they believe that federal assistance is necessary to supplement State and local efforts to save lives, protect property, and protect public health and safety.
