Emergency powers broadly refers to the authority given to individuals in the executive to act outside the traditional bounds of their authority in order to react to a danger that normal channels for approval could not address. The most important emergency powers are those given to the President through the National Emergencies Act. The Act enables the President to unilaterally declare a national emergency which allows them to use a plethora of powers such as deploying troops or cutting off telecommunication in the country. There are over 120 statutory provisions that may be used by the President during a national emergency.
- To see these statutory provisions see this guide to emergency powers.
The Act requires the President to publicly state the reasoning for the emergency and inform Congress periodically on any costs resulting from the national emergency.
The Constitution does not expressly grant the President additional war powers or other powers in times of national emergency. However, many scholars think that the Framers implied these powers because the structural design of the Executive Branch enables it to act faster than the Legislative Branch. Nevertheless, because the Constitution remains silent on the issue, the Judiciary cannot grant these powers to the Executive Branch when it tries to wield them. The courts will only recognize a right of the Executive Branch to use emergency powers if Congress has granted such powers to the President.
Given the extent of the powers and the lack of express Constitutional grant, the extent of the Executive Branch's emergency powers has come under recent scrutiny. See, for example:
- Gregory Korte, Justice Department: President Can't Use Emergency Powers in Secret, USA Today, Dec. 9, 2016.
- Gregory Korte, Special Report: America's Perpetual State of Emergency, USA Today, Oct. 22, 2014.
- Patrick Thronson, Toward Comprehensive Reform of America's Emergency Law Regime, 46 U. Mich. J.L. Reform 737 (2013).
- Elizabeth Goitein, The Alarming Scope of the President’s Emergency Powers, The Atlantic, (2019).
National Emergencies Act
In 1976, Congress enacted the National Emergencies Act, codified at 50 U.S.C. §§ 1601-51, in response to the continued existence of four declared national emergencies, the oldest of which had been in place for forty years. The Act did not revoke the outstanding emergency declarations, but instituted an expiration date on existing declared emergencies, barring further action. It also provided for a variety of termination methods, including the automatic termination of a national emergency upon its anniversary every year, if the President does not act to renew it.
For example, the declaration of national emergency declared by President George W. Bush in Proclamation 7463 (in response to the September 11th terrorist attacks in 2001) was due to terminate on September 14, 2016. However, President Barack Obama continued the state of emergency beyond that date by following procedure established in the National Emergencies Act.
The four national emergencies that the Act was meant to address, according to Senate Report No. 93-549, were:
- The 1933 banking crisis, in which President Roosevelt renewed the national emergency declaration of the Act of March 9, 1933 via Executive Order 6102 and prohibited the hoarding of gold.
- The 1950 Korean War communism scare, in which President Truman declared a national emergency via Proclamation 2914.
- The 1970 postal workers strike, in which President Nixon declared a national emergency via Proclamation 3972 and threatened to deliver mail in New York using the National Guard.
- The 1971 inflation emergency, in which President Nixon declared a national emergency via Proclamation 4074 and imposed a temporary surcharge on imports to "strengthen the international economic position of the United States."
Executive Claims of Emergency Powers in History
Presidents have claimed emergency powers at many pivotal points throughout United States history. A claim of emergency powers was at the center of President Abraham Lincoln's suspension of habeas corpus without Congressional approval in 1861. President Lincoln claimed that the Confederate rebellion created an emergency that permitted him the extraordinary power of unilaterally suspending the writ. With Chief Justice Taney sitting as Judge, the Federal District Court of Maryland struck down the suspension in Ex Parte Merryman, although President Lincoln ignored the order.
President Roosevelt similarly invoked emergency powers when he issued Executive Order 9066 directing that all Japanese Americans residing on the West Coast be placed into internment camps during World War II. Because Congress had already declared war, the U.S. Supreme Court found Congress to have recognized an ongoing emergency. Consequently, by issuing the order, the President had acted in accordance with Congress's expressed intent, which was to respond to the emergency of war. For this reason, the United States Supreme Court upheld Executive Order 9066 in Korematsu v. United States as a constitutional exercise of Presidential Commander in Chief and emergency powers.
President Harry Truman declared the use of emergency powers in Executive Order 10340 when he seized private steel mills that failed to produce steel because of a labor strike in 1952. With the Korean War ongoing, President Truman asserted that he could not wage war successfully if the economy failed to provide him with the material resources necessary to keep the troops well-equipped. The United States Supreme Court, however, rejected the argument in Youngstown Sheet & Tube Co. v. Sawyer, voting 6-3 that neither Commander in Chief powers nor any claimed emergency powers gave the President the authority to unilaterally seize private property without Congressional authority.
Additional Resource
Louis Fisher, Constitutional Conflicts between Congress and the President 249-272 (2007).
[Last updated in November of 2022 by the Wex Definitions Team]