What Does Washington Consider an Emergency?
Lindsey Graham, a Republican senator from South Carolina, took to the president’s favorite communications medium – Twitter – last weekend to urge the commander in chief to “declare a national emergency NOW” to build a wall on America’s southern border.
With talks to end the standoff at a virtual standstill – and after acknowledging that Mexico is not going to pay for his steel barrier along the southern border – the president has suggested many times that he simply can declare a national emergency to gather funding from other federal agencies to build his wall. (Earlier this week, though, the president said a national emergency wasn’t his preferred option).
Can he do it?
At the heart of that question is the National Emergencies Act (NEA), which was passed by Congress nearly 43 years ago. The NEA was not an effort to expand these powers. It was intended by Congress to limit them.
From the time the U.S. Constitution was written until the mid-20th century, the president was given wide latitude when it came to national emergencies. As the nonpartisan Congressional Research Service (CRS) explained in 2007, the Founding Fathers were heavily influenced by the English philosopher John Locke, who argued that a chief executive must retain such powers in order to provide for “the public good.” These powers, Locke opined, weren’t limited to wartime. Regarding the president’s emergency powers, Teddy Roosevelt, the 26th president, virtually channeled Locke. He said, “[I]t was not only his [the president’s] right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.”
As such, as CRS makes clear, “[I]n the American governmental experience, the exercise of emergency powers has been somewhat dependent upon the Chief Executive’s view of the presidential office.” Presidents got to do what they wanted to do, and Congress thought they’d be pretty responsible about it. Hence, President George Washington felt justified in dispatching a militia to put down the Whiskey Rebellion – a tax protest – in Pennsylvania in 1792 and President Abraham Lincoln thought it was right to suspend habeas corpus in 1861, allowing the U.S. military to indefinitely detain rebels in the Civil War, both without formal authorization from the Congress.
By the 1970s, though, as the Vietnam War and Watergate changed the public’s perception of their elected representatives, lawmakers weren’t exactly thrilled with how executive authority had matured in the American democratic experiment.
Teddy Roosevelt and the next few presidents had exercised their emergency powers almost entirely at their own discretion. In 1917, in the midst of World War I, Woodrow Wilson used emergency powers to issue a proclamation on water transportation policies meant to make it easier to transport food and raw materials. Forty-eight hours after taking office in 1933, Franklin Roosevelt issued an order to declare a “bank holiday” and shut down financial transactions, fearing a run on the banks could collapse the U.S. financial system.
In the 1970s – after two world wars and a Great Depression; a Korean conflict where President Harry Truman kept in place his emergency declaration “after the conditions prompting its issuance had disappeared”; and Vietnam – lawmakers began asking questions.
Should the president retain extraordinary powers even after an actual emergency had passed? How long should an emergency declaration last? Does Congress have the authority to overrule the president?
In 1973, Congress convened the rarest of panels – a special committee – to examine the issue. (Special committees are generally convened only when lawmakers need to investigate a major issue – Watergate, the Iran-Contra Affair, the spate of political assassinations in the 1960s, or Benghazi.) And so the Special Committee on the Termination of the National Emergency was formed.
At that point, the nation was operating under four emergency declarations, including the one issued 23 years earlier and under which the United States had been prosecuting the war in Vietnam. The committee, as CRS explains, “found that no process existed for automatically terminating” those four proclamations.
The committee recommended Congress enact legislation to provide a formula for regulating emergency declarations and, in 1976, the House and Senate passed, and President Gerald Ford, signed the NEA. Far from expanding the president’s emergency powers, the law “eliminated or modified some statutory grants of emergency authority.” It also required that the president be specific about what he would do under the declaration and gave Congress a path to countermand the declaration. Under the NEA, emergency declarations would expire after a year unless the president formally renewed it.
So, almost a half century later, is it clear that the NEA succeeded in limiting presidential power?
The Brennan Center’s Elizabeth Goitein recently told NPR that, even under the NEA, lawmakers still were not that forceful and essentially “chose not to put any substantial – or really any – barriers on the president's ability to declare a national emergency.” Even if the emergency declaration had to expire a year after the president issued it, under the NEA there still were no limits on when a president could declare an emergency.
Since 1978, presidents have issued national emergency declarations 58 times, an average of 1.45 times a year. (President Trump already has declared three emergencies.) Even more startling is this: 31 of these declarations, more than 53 percent, still are in effect.
Most of these orders provide for sanctions on other countries, but the emergency declaration issued by President George W. Bush three days after the Sept. 11, 2001 terrorist attacks is one of those still viable. This declaration initially allowed President Bush to do things like to call up the National Guard to help with rescue and recovery in New York, Washington and Pennsylvania. It also allowed the president to “make a determination that it is necessary to increase the number of members of the armed services on active duty beyond the number for which funds have been appropriated for the Department of Defense” – essentially bypassing the Congressional appropriations process. In a separate emergency declaration issued Sept. 23, 2001, President Bush gave himself the ability to “regulate or prohibit any transactions in foreign exchange, bank transfers of credit or payments involving any interest of any foreign country or a national thereof, or transactions involving any property in which any foreign country or a national thereof has any interest.” That order also is still in effect nearly eighteen years later.
The NEA didn’t spell out when a president could declare an emergency, but another reason it has had limited effect is that the original law eventually was changed. As written in 1976, the NEA allowed the House and Senate to terminate emergency declarations by passing a concurrent resolution, which requires only a majority of both houses of Congress to pass. Because a president couldn’t veto that action, this provision was challenged in court and, seven years after the NEA was passed, the Supreme Court ruled it unconstitutional. Lawmakers revised the NEA and now termination of an emergency decree requires a joint resolution that must be signed by the president. If the president vetoes the resolution, Congress can override it in the usual manner – through a two-thirds vote in each chamber – but, as Americans know, getting a just a simple majority vote in either chamber is difficult enough these days.
The chief reason the NEA hasn’t successfully restrained the president, though, is that, Congress is still loathe to challenge the president. According to the Brennan Center’s Goitein, “Congress has never voted once in the last 40 years – since the National Emergencies Act has been in effect – to terminate a state of emergency.” Congress also is supposed to review each emergency every six months, but it hasn’t.
In the current climate, an emergency declaration providing the president with the authority to build a border wall would almost certainly challenge the decades-old practice of Congressional disengagement from presidential emergency declarations. Litigation – likely led by the Democratic-led House of Representatives – would challenge the Commander in Chief’s authority under the NEA, potentially reshaping the wide, Locke-esque latitude that American presidents have enjoyed to “do anything that the Needs of the Nation demanded” since the Constitution was ratified.