A State of Emergency: The Unbridled Expansion of U.S. Presidential Authority Under the Emergency Powers

“White House” by Diego Cambiaso via Flickr

Matthew Marino, Associate Member, University of Cincinnati Law Review

I. Introduction

In the United States, emergency powers allow the President to act alone in response to a crisis.[1] Emergency powers are necessary because Congress cannot act quickly in response to a crisis—Congressional bills can take months or years to become law.[2] Therefore, the President may declare a state of emergency at his or her sole discretion to address circumstances that require an immediate response.[3] Additionally, Congress passes laws granting the President increased authority during states of emergency.[4] As of 2021, the United States is in 40 ongoing states of emergency, and 136 laws may become available to the President granting him or her increased power during a state of emergency.[5] This post will explore the implications of granting extraordinary emergency powers to the President.

II. Background

A. What are Emergency Powers?

The U.S. Constitution does not expressly provide for emergency powers.[6] Article II Section 2 of the Constitution provides that “The President shall be commander in chief of the Army and Navy of the United States.”[7] However, Article II does not grant the President any additional powers during states of emergency.[8] Many scholars believe the framers implied emergency powers because the Executive Branch can act faster than Congress.[9] Congressional bills must go through a long and arduous lawmaking process to become law, requiring approval of the House of Representatives, the Senate, and the President. Therefore, the President has historically acted under implied emergency powers to respond to crises.[10]

Congress also passes emergency statutes authorizing the President to respond to emergencies. Article 1 Section 8 of the Constitution provides that Congress is authorized to “make all laws which shall be necessary and proper” to carry out the forgoing powers listed in Article I Section 8.[11] One of the forgoing powers listed in Article I Section 8 states that Congress shall “provide for the common Defense and general Welfare.”[12] Therefore, laws granting statutory emergency powers to the President to act alone in response to emergencies have become “necessary and proper” to provide for the common defense and general welfare because Congress cannot act quickly to address emergencies.[13]

B. History of the Emergency Powers

Exercise of the emergency powers can be traced back to 1792 when Congress enacted legislation authorizing the President to call forth a militia to suppress uproar regarding a federal whisky tax.[14] Over the next 100 years, Congress enacted emergency statutes responding to military, economic, and labor emergencies.[15] Many of these laws were standby meaning they could only be activated once the President had formally declared a state of emergency.[16]

i. Implied Emergency Powers

The first controversial exercise of implied emergency powers came during the Civil War when Abraham Lincoln issued proclamations calling for a blockade on secessionist states’ shipping ports as well as the enlargement of the Union’s army and navy.[17] The directive frustrated Congress, because Congress is specifically authorized under Article 1 Section 8 of the Constitution “to raise and support armies,” and Congress had not passed an emergency statute that would have allowed President Lincoln to assume these powers.[18] Lincoln urged Congress that his actions were justified by public necessity.[19] Congress retroactively authorized the actions, establishing a dubious precedent: the President would make a response to an emergency at hand, a response that Congress or the Courts might have rejected in law but, nonetheless, became solidified through public support, implementation, and approval of the policy.[20]

ii. Statutory Emergency Powers

By 1917, procedural developments made the President’s use of the emergency powers appear more legitimate but no less controversial.[21] It had become customary for the President to formally declare a state of emergency with a proclamation, thereby activating all standby emergency statutes.[22] More war-related proclamations continued into the twentieth century under Presidents Woodrow Wilson and Franklin D. Roosevelt through the First and Second World Wars.[23]  President Roosevelt invoked emergency powers to require all Japanese Americans residing on the West Coast to be placed in internment camps at the beginning of World War II.[24]

C. Limitations on the Emergency Powers

The Supreme Court limited the President’s emergency powers in Youngstown Sheet and Tube Co. v. Sawyer (the Steel Seizure Case), holding that neither commander in chief nor any implied emergency powers gave the President the authority to unilaterally seize private property without Congressional authorization under an emergency statute.[25] Justice Brennan’s concurrence in New York Times Co. v. U.S. (the Pentagon Papers Case) also suggested that the emergency powers do not give the President the authority to block private media organizations from publishing information without Congressional authorization under an emergency statute.[26] This is unless the information is specific enough to cause a serious obstruction to national security, such as publication of the location of troops during a war.[27]

Congress began to seriously question the emergency powers after President Harry Truman’s 1950 proclamation of a national emergency responding to military conflict in Korea.[28] The “emergency,” which required immediate strengthening of the country’s defenses to address the threat of “communist imperialism,” continued long after U.S. military involvement in Korea had ended.[29] Truman’s proclamation provided a vehicle for U.S. military involvement in Vietnam.[30]

Although the Steel Seizure Case and the Pentagon Papers Case somewhat limited the President’s emergency powers, tensions continued to arise among Congress members who recognized that by refusing to terminate states of emergency, the President was retaining extraordinary power intended only for use during a genuine crisis.[31] To address abuse of the emergency powers, Congress passed the National Emergencies Act of 1976 (“NEA”), which outlined formal procedures to regulate the activation and application of federal emergency statutes.[32] The NEA also provided for the termination of various then-existing states of emergency and emergency statutes.[33] Today, the President acts almost exclusively under emergency statutes when exercising his or her emergency powers and is therefore subject to the NEA.[34] However, the NEA has not adequately harnessed the President’s emergency powers.[35]

III. Analysis

Emergency powers have desirable features. As mentioned, Congress cannot act quickly in response to a crisis. Presidential authority has increased in most liberal democracies so presidents can effectively confront “a world besieged by complexity and crisis” that legislatures are ill-equipped to address.[36] However, with more power vested exclusively in the President comes more potential for abuse of the emergency powers.

A. Presidential Abuse of Emergency Powers

The dictionary defines “emergency” as “an unforeseen combination of circumstances of the resulting state that calls for immediate action.”[37] In 1950, when President Truman entered the Korean War without Congressional approval, there were no threats to American soil requiring immediate action.[38] Truman justified the order in light of the “world conquest by communist imperialism” that the “forces of aggression” had “loosed upon the world.”[39]

The effort to suppress communist imperialism precipitated a new era of undeclared wars, including the hostilities in Vietnam, Afghanistan, and Iraq.[40] Congress eventually conceded on the issue by passing the War Powers Resolution in 1973, which provided that wars may be declared without congressional authorization.[41] However, no president has invoked the Act, as it might imply that his or her ability to engage in war whenever and wherever is not fully secured by the President’s commander-in-chief powers.[42]

After declaring a state of emergency, the President has 136 statutory provisions extending him or her special powers.[43] Only 13 of these provisions require Congressional pre-authorization.[44] This number dwindles the 470 provisions available to the President under states of emergency in 1973.[45] However, the U.S. remains in 40 ongoing states of emergency.[46] Under the NEA, the President may still declare emergencies at his or her sole discretion.

B. The NEA: Forceless in Application

The NEA has five titles, none of which clear up the definition of “emergency.”[47] The NEA defines “emergency” as the state resulting from “a general declaration of emergency made by the President.”[48] The NEA requires the President to specify the statutory powers he or she plans to activate upon declaring an emergency.[49] However, the President may still act with broad discretion in enforcing those powers. The NEA also imposes certain reporting and accountability obligations on the President when acting under states of emergency.[50] However, the accountability and reporting provisions have not been vigorously enforced and therefore do not adequately restrain the President’s broad discretion under emergency statutes.[51]

C. Over-broadness of Emergency Statutes

Emergency statutes extend broad discretionary authority to the President. For instance, Section 332 of the Insurrection Act (Act) authorizes the President to deploy federal troops in states where “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any state by the ordinary course of judicial proceedings.”[52] The Insurrection Act does not offer any other guidance regarding when resorting to the ordinary course of judicial proceedings will be “impracticable,” such as circumstances where the public is confronted with immediate danger.[53] Rather, Section 332 of the Act grants the President sole discretion to define when resorting to the ordinary course of judicial proceedings will be “impracticable” before deploying federal troops on home soil. This is an extraordinary power to vest in one individual.

The Insurrection Act is at least tailored toward preventing an immediate threat to U.S. soil. The same cannot be said about President George W. Bush’s Executive Order 13288 blocking property in Zimbabwe.[54] President Barack Obama blocked property in a number of countries during states of emergency, including Somalia, Ukraine, and Yemen, to name a few.[55] In short, emergency statutes grant broad discretionary powers to the President over issues that do not necessarily implicate direct and immediate threats to U.S. soil. It is doubtful that the framers of the Constitution envisioned any implied emergency powers to extend this far.

D. The Problem with the President Acting Alone

There is nothing wrong with the President providing for national security and controlling foreign affairs. These areas of the law often require immediate responses or operations overseas to promote the security of the nation. However, use of the emergency powers may produce negative consequences when the President implements policies under emergency statutes better suited for Congress. For instance, in 2019, President Donald Trump issued Proclamation 9844, securing $1.375 billion for fencing in the Rio Grande Valley Sector under a declared emergency concerning the southern border of the United States.[56] Immediately after assuming office, President Biden terminated efforts on the border fence.[57] Partisan politics aside, it is inefficient to allocate billions of dollars for a policy objective, pursued without national deliberation and consensus, that a succeeding administration can quickly abandon. Long-term, expensive, and complex policy goals deserve the scrutiny of the lawmaking process.

E. The Value of the Lawmaking Process

Bicameralism describes our form of government, in which the national legislature has two houses: the House of Representatives and the Senate. While the House represents the concerns of the localities of each state, the Senate represents the concerns of the state as a whole.[58] The lawmaking process requires bills to pass both the House and the Senate. Once the bill passes the House and Senate, it is presented to the President for his or her final signature before becoming law. The framers intended the lawmaking process to be long and arduous so only good laws would pass.[59] Although emergency statutes enabling the President to act under states of emergency require passage through the lawmaking process, the President’s specific actions under emergency statutes do not. To prevent the President from abusing emergency powers, Congress must limit the President’s authority under emergency statutes and encourage use of the lawmaking process for long-term, expensive, and complex policy goals. Until Congress acts on the matter, the President must act responsibly with his or her emergency powers.

F. Congress, Think Before You Draft; Presidents, Think Before You Act

As mentioned, there is nothing wrong with the President defending U.S. soil. However, emergency statutes must be designed to prevent the President from pursuing long-term, expensive, and complex policies better suited for the lawmaking process for two main reasons: (1) the lawmaking process reflects national consensus; and (2) laws passed through the lawmaking process cannot be immediately reversed by a new President.

Firstly, the deliberation and consensus required of the lawmaking process ensures that all U.S. citizens’ concerns are represented before the decision is made to pursue a long-term, expensive and complex policy, such as building a massive border fence to control immigration with $1.375 billions of taxpayer dollars. Although Congress can pass a joint resolution with a majority vote to terminate a national emergency, the President still has an opportunity for a veto.[60] In the Border Wall example, the House and Senate quickly vetoed President Trump’s declaration of a state of emergency.[61] However, President Trump simply vetoed the rejection bill.[62] The bill returned to the House where a two-thirds vote was necessary to override the veto.[63] The House did not achieve the necessary vote, and the proclamation remained standing.[64] Because the President’s actions under emergency statutes may become irreversible despite majority disapproval in Congress, Congress must define more narrowly the responsibilities of the President under emergency statutes to prevent abuse of the emergency powers.

Secondly, laws passed by Congress cannot be immediately reversed by a new President. Conversely, a past President’s action under an emergency statute can be instantly undone by a new President. The Border Wall example illustrates the enormous waste of time, resources, and effort that can result when the President pursues long-term, expensive, and complex policy objectives under the emergency powers. Over $1 billion were allocated for a border fence that will never be completed, as the Biden Administration quickly abandoned Trump’s declared emergency at the southern border. Until Congress successfully limits the emergency powers, Presidents must weigh the risk that a succeeding administration will immediately reverse their emergency policies, amounting to a waste of time, resources, and effort.

IV. Conclusion

Emergency powers will always be necessary. Congress is ill-equipped to respond to emergencies due to the long and arduous lawmaking process. However, Congress has over-equipped the President to respond to emergencies. Unfortunately, public backlash against the President typically focuses on the President’s actions. Instead, public criticism should focus on our system of government that permits the President to act with unbridled authority during states of emergency. Justice Stewart once remarked that “the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry—in an informed and critical public opinion which alone can here protect the values of democratic government.”[65] People of the U.S. must act accordingly and urge Congress to limit the President’s emergency powers through new emergency statutes, termination of existing emergency statutes, vigorous enforcement of the NEA, as well as a narrower criteria for the definition of “emergency” and when the President may declare one.

[1] L. Elaine Halchin, National Emergency Powers 1 (Congressional Research Service, 98-505, 2020).

[2] Id.

[3] Id.

[4] Id. at 4.

[5] See Declared National Emergencies Under the National Emergencies Act 1, 1-8 (Brennan Center for Justice at New York University School of Law, 2021); A GUIDE TO EMERGENCY POWERS AND THEIR USE 1, 2 (Brennan Center for Justice at New York University School of Law, 2d ed., 2019).

[6] Halchin, supra at 1.

[7] U.S. Const. art. 1 § 2.

[8] Emergency Powers, Legal Info. Inst., https://www.law.cornell.edu/wex/emergency_powers (last visited Feb 18, 2021).

[9] Id.

[10] Halchin, supra at 1-2.

[11] Id. (citing U.S. Const. art. 1 § 8).

[12] Id.

[13] See Id.

[14] Id. at 4.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id. at 5.

[22] Id.

[23] See Id. at 5-6.

[24] Emergency Powers, supra at note 8.

[25] 343 U.S. 579, 588 (1952).

[26] 403 U.S. 713, 726 (1971).

[27] See Id.

[28] Halchin, supra at 7.

[29] Id.

[30] Id.

[31] See Halchin, supra at 7.

[32] Id. at 8.

[33] Id.

[34] Id.

[35] Id.

[36] Bruce Cannon Gibney, The Nonsense Factory (Hachette Books, 1st ed. 2019).

[37] Halchin, supra at 3 (citing emergency, Webster’s New Collegiate Dictionary (8th ed., 1974)).  

[38] Gibney, supra at 351.

[39] Proclamation No. 2914. 3 CFR (1949-1953).

[40] Gibney, supra at 352.

[41] Id. at 352-53.

[42] Id.

[43] A Guide to Emergency Powers and Their Use, supra note 5.

[44] Id.

[45] See Halchin, supra at 2.

[46] Declared National Emergencies Under the National Emergencies Act, supra note 5.

[47] See 50 U.S.C. 1601 § 101.

[48] Id.

[49] Halchin, supra at 11.

[50] See Id.

[51] See Id.

[52] Gibney, supra at 361 (citing 10 U.S.C. § 332).

[53] See 10 U.S.C. § 332.

[54] See Declared National Emergencies Under The National Emergencies Act 5 (Brennan Center for Justice, 2018).

[55] Id. at 6.

[56] Halchin, supra at 18.

[57] See Proclamation 10142, 86 F.R. (2021).

[58] See INS v. Chadha, 462 U.S. 919, 949 (1983).

[59] Id. at 947.

[60] Halchin, supra at 18. 

[61] Id.

[62] Id.

[63] Id.

[64] See Id.

[65] N.Y. Times Co. v. United States., 403 U.S. at 728.