Emergency Powers: Can Laws Be Overruled?

A national emergency declaration is a powerful tool in the hands of the President of the United States. It allows the President to activate special powers and authorities to address unforeseen events that require an immediate response. While the President can unilaterally declare a national emergency, the powers available are limited to the 136 emergency powers defined by Congress. The declaration of a national emergency can grant the President sweeping powers, such as suspending laws, activating military construction projects, and seizing control of domestic transportation. However, there are concerns that these powers could be abused to bypass congressional action or infringe on constitutional rights.

The US President can declare a national emergency

The US President has the authority to declare a national emergency and activate emergency provisions of law via an emergency declaration. However, the President must specify the provisions activated and notify Congress. The President's emergency powers are contingent on the existence of a crisis that requires an immediate response.

The National Emergencies Act was passed in response to the growing number of laws granting special powers to the executive branch during times of national emergency. The Act constrains executive overreach by allowing Congress to terminate a national emergency declaration with a joint resolution enacted into law. This joint resolution requires a majority vote and does not need the President's signature.

The US President has used their emergency powers in various situations, such as during the swine flu outbreak in 2009, when President Barack Obama declared a national emergency to allow hospitals and local governments to establish sites to deal with the virus. Similarly, in 2001, President George W. Bush declared a national emergency following the 9/11 terrorist attacks, suspending certain aspects of the law, including provisions that limit the size of the military.

The President's emergency powers are extensive and can be used to suspend laws regulating chemical and biological weapons, including the ban on human testing. They can also be used to authorize military construction projects, draft retired Coast Guard officers and enlisted members into active duty, and control domestic transportation.

Congress can terminate an emergency declaration

The Act authorizes the President to activate emergency provisions of law via an emergency declaration on the condition that the President specifies the provisions so activated and notifies Congress. An activation would expire if the President expressly terminated the emergency, or did not renew the emergency annually, or if each house of Congress passed a resolution terminating the emergency. After presidents objected to this "Congressional termination" provision on separation of powers grounds, and the Supreme Court in INS v. Chadha (1983) held such provisions to be an unconstitutional legislative veto, it was replaced in 1985 with termination by an enacted joint resolution.

A joint resolution passed by both chambers requires presidential signature, giving the president veto power over the termination (requiring a two-thirds majority in both houses in the case of a contested termination). The Act repealed several provisions of federal law that a President might invoke via a declaration of emergency and stated that prior emergency declarations would no longer give force to those provisions that remained.

The first president to declare a national emergency was President Abraham Lincoln during the American Civil War. Starting with Franklin D. Roosevelt in 1933, presidents asserted the power to declare emergencies without limiting their scope or duration, without citing the relevant statutes, and without congressional oversight. The Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer limited what a president could do in such an emergency, but did not limit the emergency declaration power itself.

Emergency declarations can be used to redirect funds

In another instance, President George W. Bush declared a national emergency after the 9/11 terrorist attacks, suspending certain aspects of the law, including provisions that limit the size of the military. Similarly, President Barack Obama declared a national emergency in 2009 during the swine flu outbreak to allow hospitals and local governments to establish sites to deal with the virus.

During the COVID-19 pandemic, emergency declarations allowed officials at the federal, state, and local levels to mobilize quickly and activate various powers to respond to the crisis. For example, in San Diego County, California, a local emergency declaration increased resources for beds at local hospitals, while in Solano County, it created an operations center to facilitate screening. In Washington's King County, an emergency declaration enabled the county to quickly purchase a motel to isolate patients with COVID-19.

The National Emergencies Act empowers the President to activate special powers during a crisis while imposing procedural formalities when invoking such powers. The Act authorizes the President to activate emergency provisions of law via an emergency declaration, provided they specify the provisions and notify Congress.

Emergency declarations can be used to suspend laws

A national emergency declaration can be used to suspend laws. The US President can activate special powers during a crisis, but there are procedural formalities to follow when invoking such powers. The National Emergencies Act empowers the President to do so, and there have been 60 national emergencies declared as of March 2020, with more than 30 still in effect.

The first President to declare a national emergency was Abraham Lincoln during the American Civil War. Since then, Presidents have continued to use their emergency authority, with 42 national emergencies declared between 1976 and 2007. The Act outlines 136 emergency powers that the President can use, and while it repealed several provisions, it did not revoke any outstanding emergency declarations, as this remains the President's prerogative.

The emergency powers available to the President are wide-ranging and significant. They include the power to suspend laws regulating chemical and biological weapons, including the ban on human testing, and to suspend any Clean Air Act implementation plan or excess emissions penalty upon the petition of a state governor. The President can also invoke the use of the Armed Forces, as seen in the declaration by President Trump regarding the southern border of the United States.

Additionally, the President can authorize military construction projects using defense appropriations, and draft retired Coast Guard officers or enlisted members into active duty regardless of their ineligibility for Selective Service. The President's authority to declare a national emergency and suspend certain laws is not without limits, and it is subject to congressional oversight and potential legal challenges.

Emergency declarations can be used to activate special powers

The President can make a national emergency declaration, which is entirely within their discretion. Once this declaration is made, more than 100 special provisions become available to the President. While many of these provisions are reasonable responses to genuine emergencies, some appear to be dangerously suited to a leader bent on amassing or retaining power. For example, the President can shut down many kinds of electronic communications or freeze Americans' bank accounts.

The President's emergency powers are sweeping and dramatic. They include the power to suspend laws regulating chemical and biological weapons, including the ban on human testing, suspend any Clean Air Act implementation plan or excess emissions penalty upon petition of a state governor, and authorize military construction projects using existing defense appropriations. The President can also draft any retired Coast Guard officers or enlisted members into active duty, regardless of their ineligibility for Selective Service.

The National Emergencies Act was passed in 1976 due to concerns that a declaration of "emergency" for one purpose could invoke every possible executive emergency power. The Act repealed several provisions and stated that prior emergency declarations would no longer give force to the provisions that remained. Congress did not attempt to revoke any outstanding emergency declarations, as these remained the President's prerogative under Article Two of the United States Constitution.

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