Kara Sears
The National Emergencies Act (NEA) allows the US president to declare a national emergency and access certain powers without direct approval from Congress. The NEA was passed in 1976 to constrain executive overreach by allowing Congress to terminate a national emergency with a majority vote. However, the Supreme Court declared such legislative vetoes unconstitutional in 1983, leaving a system where emergencies are easy to declare and hard to stop. The NEA authorises the president to activate emergency provisions of law via an emergency declaration, with the condition that they specify the provisions and notify Congress. Congress can then vote to end the emergency, but it needs a veto-proof majority to do so.
| Characteristics | Values |
|---|---|
| Can the president declare an emergency law without Congress? | Yes, the president can declare an emergency law without Congress. |
| First president to declare a national emergency | Abraham Lincoln during the American Civil War |
| Number of national emergencies declared | 60 as of March 2020, with more than 30 still in effect |
| Number of national emergencies declared between 1976 and 2007 | 42 |
| Number of national emergencies declared between 1953 and 2014 | 35.5 per year on average |
| Number of emergency declarations under the Stafford Act between 1974 and 2014 | 9 per year on average |
| Number of statutory powers available to the president during a national emergency | 123-137 |
| Number of additional powers available when Congress declares a national emergency | 13 |
| Powers available | Shutting down communications facilities, seizing Americans' bank accounts, deploying US troops, Suspending the Clean Air Act, controlling domestic transportation, seizing private property |
| Powers not available | Suspending laws regulating chemical and biological weapons, including the ban on human testing |
| Can Congress terminate an emergency declaration? | Yes, with a joint resolution enacted into law |
| Can Congress vote to end an emergency? | Yes, but it needs a veto-proof majority to do so |
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What You'll Learn
The National Emergencies Act
The need for the law arose from the scope and number of laws granting special powers to the executive in times of national emergency. The first president to declare a national emergency was Abraham Lincoln during the American Civil War. Starting with Franklin D. Roosevelt in 1933, presidents asserted the power to declare emergencies without citing relevant statutes or limiting their scope or duration, and without congressional oversight.
Congress has delegated at least 136 distinct statutory emergency powers to the President, each available upon the declaration of an emergency. Only 13 of these require a declaration from Congress; the remaining 123 are assumed by an executive declaration with no further Congressional input. Congressionally-authorized emergency presidential powers are sweeping and dramatic, and range from suspending laws regulating chemical and biological weapons, including the ban on human testing, to suspending any Clean Air Act implementation plan or excess emissions penalty upon a state governor's petition.
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Presidential powers during a state of emergency
The NEA allows the president to declare emergencies with a signature on an executive order, and these emergencies can be renewed annually. While Congress can vote to end an emergency, it effectively needs a veto-proof majority to do so. The NEA has been criticised for making emergencies "easy to declare and hard to stop".
Upon declaring a national emergency, the president can access over 130 special authorities. These include the power to shut down communications facilities, control domestic transportation, suspend the Clean Air Act, deploy US troops to any foreign country, seize Americans' bank accounts and private property, and draw down equipment from national defence stockpiles.
The president may also authorise any agency that exercises functions in connection with national defence to enter into, amend, or make advance payments on contracts without regard to provisions of law relating to contract formation, amendment, or performance. They may also alter automatic adjustments to federal pay schedules after first reporting to Congress.
The NEA was passed in 1976 due to concerns that a declaration of "emergency" for one purpose could invoke every possible executive emergency power. It repealed several provisions of federal law that a president might invoke via a declaration of emergency.
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Congress's role as a check on executive power
Congress, as one of the three coequal branches of government, is ascribed significant powers by the Constitution. All legislative power in the government is vested in Congress, meaning that it is the only part of the government that can make new laws or change existing laws. Congress also holds the sole power to declare war, confirm or reject Presidential appointments, and possesses substantial investigative powers.
Congress has the power to terminate a national emergency declaration with a joint resolution enacted into law. This power was granted by the National Emergencies Act (NEA), which was passed in 1976 to constrain executive overreach. The Act requires the President to specify the emergency provisions activated and notify Congress, and allows Congress to terminate an emergency with a majority vote through a simple concurrent resolution, which does not require the President's signature.
However, the effectiveness of the NEA has been limited by Supreme Court decisions that have declared certain provisions of the Act unconstitutional. As a result, there is bipartisan consensus for reforming emergency powers to restore Congress's role as a check on executive power. Senators and Representatives from both parties have introduced the ARTICLE ONE Act, which would require a majority vote in both chambers of Congress to continue a national emergency declaration after 30 days.
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Emergency declarations under the Stafford Act
The Robert T. Stafford Disaster Relief and Emergency Assistance Act, or simply the Stafford Act, provides for two types of disaster declarations: emergency declarations and major disaster declarations. Both types of declarations authorise the President to provide supplemental federal disaster assistance.
The Stafford Act authorises the President to supplement state, local, or Indian tribal government efforts in providing emergency services, such as the protection of lives, property, public health, and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.
The Act also provides for individual assistance declarations, which provide assistance to individuals and households. Public assistance declarations, on the other hand, provide assistance to state, tribal, and local governments, as well as certain private nonprofit organisations, for emergency work and the repair or replacement of disaster-damaged facilities.
During the COVID-19 pandemic, President Donald J. Trump declared an emergency under the Stafford Act on March 13, 2020. As of April 22, 2020, the President had approved major disaster declaration requests for all 50 states, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.
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The Insurrection Act
In 2025, President Trump contemplated using the Insurrection Act to address undocumented immigration and border issues. He signed an executive order declaring a national emergency at the southern border and directed Hegseth and Noem to assess the situation and recommend whether to invoke the Act. However, they advised against it due to the decrease in migrant crossings and the belief that the situation did not warrant military involvement.
The potential for abuse of power and the lack of clear guidelines in the Insurrection Act have led to calls for its reform to ensure that it is used only in exceptional circumstances beyond the capabilities of civilian authorities.
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Frequently asked questions
Yes, the president can declare an emergency law without prior approval from Congress. However, Congress can terminate the emergency declaration with a joint resolution enacted into law.
The president has access to a wide range of powers during a declared emergency. These include the power to shut down or control domestic transportation, suspend the Clean Air Act, seize Americans' bank accounts, deploy US troops to any foreign country, and seize Americans' private property.
The National Emergencies Act (NEA) is a law passed by Congress in 1976 to constrain executive overreach by allowing Congress to terminate a national emergency with a majority vote through a simple concurrent resolution, which does not require the president's signature.
In recent years, the NEA has been used by presidents of both parties to achieve policy outcomes that cannot pass through Congress. For example, in 2019, President Trump declared a national emergency at the southern border to secure funding for a border wall, which Congress had previously refused.
There are concerns that presidential emergency powers could be used to bypass congressional action or infringe on constitutional rights if they are not subject to checks and accountability. There is a bipartisan consensus in favor of reforming emergency powers to restore Congress's role as a check on executive power.
