Gavin Howe
The National Emergencies Act empowers the president to activate special powers during a crisis, with 136 emergency powers available upon declaration. The president can declare a state of emergency when the life of the nation is threatened, and the ordinary laws are insufficient to restore peace and order. This declaration is not retroactive and can only continue for 21 days unless extended. While emergency powers have existed for centuries, the Act has been criticised for lacking adequate safeguards to prevent abuse, as it allows the president to declare emergencies with nothing more than an executive order, and to renew them indefinitely. The question of whether emergency measures can violate the law is a complex one, as they can indeed violate the Bill of Rights, but only to a limited extent.
| Characteristics | Values |
|---|---|
| Number of statutory powers that may become available to the president | 137 |
| Number of statutory powers that become available when a national emergency is declared by Congress | 13 |
| Number of national emergencies declared as of March 2020 | 60 |
| Number of national emergencies that remain in effect as of March 2020 | 30+ |
| First president to declare a national emergency | Abraham Lincoln |
| Number of national emergencies declared between 1976 and 2007 | 42 |
| Number of provisions of federal law that a president might invoke via a declaration of emergency | 470 |
| Number of distinct statutory emergency powers delegated by Congress to the president | 136 |
| Number of statutory emergency powers that require a declaration from Congress | 13 |
| Number of statutory emergency powers that are assumed by an executive declaration with no further Congressional input | 123 |
| Maximum duration of a state of emergency without an extension | 21 days |
| Maximum duration of an extension of a state of emergency | 3 months |
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What You'll Learn
- The US President can violate citizen rights during a national emergency
- The National Emergencies Act gives the President sweeping powers
- Congress can limit the President's emergency powers
- Presidents have abused emergency powers to advance policy goals
- Emergency powers can be used to violate human rights
The US President can violate citizen rights during a national emergency
The US President has access to a wide range of emergency powers that can be used to violate citizen rights during a national emergency. The National Emergencies Act of 1976 unlocks over 120 special statutory powers, with some sources citing 136 distinct powers, and others noting that there are 150 statutory provisions available during national emergencies.
The President can declare a national emergency at any time, for almost any reason, without needing to prove a specific threat or get approval from Congress. Once a national emergency is declared, the President can activate these special powers, which include the ability to:
- Authorize agencies that exercise functions in connection with national defense to enter into, amend, or make advance payments on contracts without regard to other provisions of law relating to contract formation, amendment, or performance.
- Suspend all 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.
- Alter automatic adjustments to federal pay schedules after reporting to Congress.
- Impose tariffs.
- Accelerate energy and mineral production.
- Militarize federal lands.
- Access billions of dollars in funding for projects such as a border wall.
While the National Emergencies Act originally included a "legislative veto" that gave Congress the ability to terminate an emergency with a simple majority vote, the Supreme Court ruled in 1983 that legislative vetoes are unconstitutional, making it harder to rein in a President's emergency declarations.
In practice, this means that the US President can violate citizen rights during a national emergency, as seen in the example of ICE violating the rights of a US citizen and 21 others during immigration enforcement arrests under President Donald Trump.
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The National Emergencies Act gives the President sweeping powers
The National Emergencies Act (NEA) gives the President sweeping powers to activate special powers during a crisis. It was signed into law by President Gerald Ford in 1976. The Act allows the President to activate emergency provisions of law via an emergency declaration, but they must specify the provisions activated and notify Congress.
The Brennan Center for Justice has identified 137 statutory powers that may become available to the President when declaring a national emergency. These include the power to shut down or control domestic transportation, suspend the Clean Air Act, and even seize Americans' bank accounts and private property. The President can also authorize agencies that exercise functions in connection with national defense to enter into, amend, or make advance payments on contracts, without regard to provisions of law relating to contract formation, amendment, or performance.
The NEA imposes procedural requirements on the President's exercise of emergency powers. It requires the President and executive agencies to maintain records of all orders and regulations that proceed from the use of emergency authority, and to regularly report the costs incurred to Congress. The NEA also allows Congress to terminate an emergency declaration with a joint resolution enacted into law, which does not require the President's signature. However, the Supreme Court declared such "legislative vetoes" unconstitutional in 1983, and now a joint resolution passed by both chambers requires a presidential signature, giving the President veto power over the termination.
The NEA has been criticized for lacking adequate safeguards to prevent abuse of power. Since the 1983 Supreme Court decision, administrations have used the NEA to circumvent the presidency's normal legal constraints to achieve policy outcomes that cannot pass through Congress. For example, President Trump declared a fake emergency to get funding for his border wall after Congress had denied him the funds.
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Congress can limit the President's emergency powers
The National Emergencies Act (NEA) was passed in 1976 to constrain executive overreach by allowing Congress to terminate a national emergency with a majority vote through a concurrent resolution that does not require the president's signature. This was in response to the growing number of laws that granted special powers to the executive in times of national emergency.
The Act empowers the President to activate special powers during a crisis but imposes procedural formalities when invoking such powers. There are over 130 special authorities that are immediately unlocked upon declaring a national emergency, including shutting down communications facilities and drawing down equipment from national defense stockpiles.
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 Act was amended in 1985, requiring a joint resolution passed by both chambers of Congress and signed by the President to terminate an emergency declaration.
Despite these checks, recent Presidents have abused their emergency powers. For example, in 2019, President Trump declared a national emergency to secure funding for a border wall after Congress had refused to allocate funds. In 2021, President Biden used emergency powers to forgive student loan debt during the COVID-19 pandemic.
To address these issues, the Brennan Center for Justice has proposed reforms to enhance Congress's role as a check against the abuse of emergency powers, including increased transparency and reporting requirements for the executive branch.
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Presidents have abused emergency powers to advance policy goals
The National Emergencies Act (NEA) empowers the President to activate special powers during a crisis. However, this has opened the door to potential abuses of power. The Act allows the President to activate emergency provisions of law via an emergency declaration, but only if the President notifies Congress and specifies the provisions being activated.
The first President to declare a national emergency was Abraham Lincoln during the American Civil War. Since Franklin D. Roosevelt in 1933, Presidents have asserted the power to declare emergencies without citing relevant statutes or seeking congressional approval. A 1973 Senate investigation found four declared emergencies that remained in effect, including the 1933 banking crisis and the 1971 emergency in response to inflation.
The NEA has been used by Presidents to circumvent the normal legal constraints of the presidency to achieve policy outcomes that cannot pass through Congress. For example, in 2019, President Trump declared a national emergency at the southern border to override Congress's refusal to fund a border wall. President Biden also relied on emergency powers to forgive student loan debt during the COVID-19 pandemic, even though Congress had considered and not enacted such bills.
The Brennan Center for Justice has identified 137 statutory powers that may become available to the President during a national emergency, including the power to take over domestic communications, seize Americans' bank accounts, and deploy US troops to any foreign country. The potential for more egregious violations of civil rights and liberties under a future authoritarian President is a cause for genuine alarm.
To prevent abuses of power, Senators from both parties have introduced the bipartisan, bicameral ARTICLE ONE Act. This Act would terminate a declaration of national emergency made by the President after 30 days unless a majority of members in both chambers of Congress vote to continue the emergency.
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Emergency powers can be used to violate human rights
Emergency powers can grant a government or president sweeping new authorities. In the United States, the National Emergencies Act empowers the president to activate special powers during a crisis. The Act has been invoked dozens of times since it was signed into law by President Gerald Ford in 1976.
However, emergency powers can be used to violate human rights. For example, in 2016, Human Rights Watch reported that Turkey's state of emergency provisions violated human rights and should be revoked. During the first three months of the state of emergency, Turkish authorities abused emergency provisions to stifle dissent, detaining large numbers of individuals, including critics of the government. Provisions of the emergency decrees affected the exercise of the right to freedom of expression and facilitated the arrest and harassment of journalists, writers, and media workers.
Similarly, in 2020, Amnesty International urged the Thai government to lift charges imposed on individuals who were being penalized for exercising their right to freedom of expression during the COVID-19 pandemic. The organization also called on the Thai government to stop the arbitrary detention of refugees and migrants and refrain from using restrictions to target critics with disproportionate punishments.
The UN High Commissioner for Human Rights has also warned that emergency powers "should not be a weapon governments can wield to quash dissent, control the population, and even perpetuate their time in power." There have been reports from different regions that security forces have used excessive and sometimes lethal force to enforce COVID-19 lockdowns and curfews.
While emergency powers can be necessary to address crises, their use must be balanced with the protection of human rights.
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Frequently asked questions
The National Emergencies Act empowers the President to activate special powers during a crisis but imposes certain procedural formalities when invoking such powers. The legislation was signed by President Gerald Ford on September 14, 1976.
Emergency powers have existed in countries around the world for centuries. They are meant to enhance executive power during unexpected crises that are moving too fast for Congress to respond. Many are sensible, but others give the president the power to take over domestic communications, seize Americans' bank accounts, and deploy US troops to any foreign country.
Yes, a state of emergency can violate human rights. Dictatorial regimes often declare a state of emergency that is prolonged indefinitely to override the human rights of their citizens, usually protected by the International Covenant on Civil and Political Rights (ICCPR). However, some rights are inviolable, including the rights to life and human dignity, the prohibition of discrimination, torture or inhumane punishment, and the right of accused people to a fair trial.
