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February 19, 2019

A Quick Look at the Long History of the National Emergency Power

 

President Donald Trump has invoked emergency powers and plans to pull funding from other parts of the government to pay for a wall on the southern border.
 
While the courts, and perhaps the U.S. Supreme Court, will decide whether the president’s actions are constitutional, Democrats and the mainstream media are on a full-court press to persuade the public they aren’t.
 
Invoking emergency powers is not uncommon; many presidents have done it many times. So we thought we’d reproduce some snippets from a 2007 Congressional Research Service (CRS) paper reviewing the issue. 

  • “A preeminent exponent of a government of laws and not of men, [philosopher John] Locke argued that occasions may arise when the executive must exert a broad discretion in meeting special exigencies or ‘emergencies’ for which the legislative power provided no relief or existing law granted no necessary remedy. … It was sufficient if the ‘public good’ might be advanced by its exercise.” 
  • “Presidents have occasionally taken an emergency action which they assumed to be constitutionally permissible. Thus, in the American governmental experience, the exercise of emergency powers has been somewhat dependent upon the Chief Executive’s view of the presidential office.” 
  • “It was [President Theodore] Roosevelt’s belief that, for the President, ‘it was not only his 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.’” (Note: some prominent conservatives, including William Howard Taft, took a more restrictive view.) 
  • “There are perhaps at least four aspects of an emergency condition. The first is its temporal character: an emergency is sudden, unforeseen, and of unknown duration. The second is its potential gravity: an emergency is dangerous and threatening to life and well-being. The third, in terms of governmental role and authority, is the matter of perception: who discerns this phenomenon? … Fourth, there is the element of response: by definition, an emergency requires immediate action, but is, as well, unanticipated …” 
  • “During the Wilson and Roosevelt presidencies, a major procedural development occurred in the exercise of emergency powers—use of a proclamation to declare a national emergency and thereby activate all stand-by statutory provisions delegating authority to the President during a national emergency. The first such national emergency proclamation was issued by President Wilson on February 5, 1917.” 
  • “The Special Committee on National Emergencies and Delegated Emergency Powers [1974] produced various studies during its existence. After scrutinizing the United States Code and uncodified statutory emergency powers, the panel identified 470 provisions of federal law which delegated extraordinary authority to the executive in time of national emergency.” 
  • “The National Emergencies Act [1976] … provided a procedure for future declarations of national emergency by the President and prescribed arrangements for their congressional regulation. The statute established an exclusive means for declaring a national emergency. Furthermore, emergency declarations were to terminate automatically after one year unless formally continued for another year by the President…” 

The CRS paper lists some 42 presidential executive orders between 1976 and 2007 invoking a national emergency. However, the CRS closes with this: 

  • “The discretion available to a Civil War President in his exercise of emergency power has been harnessed, to a considerable extent, in the contemporary period. Furthermore, due to greater reliance upon statutory expression, the range of this authority has come to be more circumscribed, and the options for its use have come to be regulated procedurally through the National Emergencies Act.”

We don’t know how the courts will decide on the president’s executive order invoking a national emergency. But it’s clear that many presidents have taken such a step when they thought the country’s safety and security were threatened.


 

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