Cameron Miranda
A national emergency declaration allows the president to temporarily use certain authorities that Congress has previously approved. Congress delegated this authority to the president because it sometimes cannot act quickly enough to respond to certain kinds of situations, such as natural disasters and public health emergencies. The first president to declare a national emergency was Abraham Lincoln during the American Civil War. Since the passage of the National Emergencies Act in 1976, every US president has declared multiple national emergencies. This act authorises the president to activate emergency provisions of law via an emergency declaration on the condition that they specify the provisions so activated and notify Congress. An activation would expire if the president expressly terminated the emergency, or did not renew it annually, or if each house of Congress passed a resolution terminating the emergency. The Brennan Center for Justice has identified 137 statutory powers that may become available to the president when they declare a national emergency, including the power to shut down communications facilities, seize Americans' bank accounts, and deploy US troops to any foreign country.
| Characteristics | Values |
|---|---|
| Number of statutory powers that become available to the president | 123-150 |
| First president to declare a national emergency | Abraham Lincoln |
| Number of national emergencies declared by each president | Carter (2); Reagan (6); H.W. Bush (4); Clinton (17); W. Bush (12); Obama (13); Trump (19 as of April 2025); Biden (9) |
| Emergency powers frameworks established by Congress | 42 U.S.C. § 247d – Public Health Service Act (1944); 42 U.S.C. § 5121 – Stafford Act (1988); 22 U.S.C. § 2318(a)(1) – Foreign Assistance Act of 1961; Defense Production Act |
| Emergency authorities exempted from the National Emergencies Act | 10 USC 2304(a)(1); 10 USC 3313, 6386(c) and 8313; 12 USC 95(a); 40 USC 278(b); 41 USC 15 and 203; 50 USC 1431–1435 |
| Powers granted by declaring a national emergency | Shutting down communications facilities; drawing down equipment from national defense stockpiles; controlling domestic transportation; Suspending the Clean Air Act; seizing Americans' private property, bank accounts, and other assets; boosting fossil fuel production; deploying U.S. troops to any foreign country |
| National Emergencies Act provision allowing Congress to terminate a national emergency | Requires a majority vote through a concurrent resolution, which does not require the president's signature |
| ARTICLE ONE Act provision for terminating a national emergency | Emergency declaration would automatically terminate after 30 days unless a majority of members in both chambers of Congress vote to continue |
| National emergencies declared since 2001 | In response to the terrorist attacks on September 11, 2001; at the southern border in 2019 to secure funding for a border wall; concerning the COVID-19 pandemic |
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What You'll Learn
Powers to control domestic transportation
In the event of a national emergency, the President of the United States can exercise certain powers to control domestic transportation. This is made possible through the National Emergencies Act (NEA), passed in 1976, which allows the President to activate emergency provisions of law through an emergency declaration. This act has been used by presidents of both parties to achieve policy objectives outside of Congress, and it has been criticised for its lack of adequate safeguards to prevent abuse.
The NEA provides the President with the authority to control and regulate various aspects of domestic transportation. This includes the ability to:
- Authorise the Secretary of Transportation or the Secretary of Homeland Security to enter into contracts and delegate certain authorities in response to national emergencies.
- Direct the Secretary of Transportation to coordinate with other departments to ensure the efficient transportation of essential personnel and resources during emergencies.
- Utilise naval vessels for the transportation of individuals at government expense during national emergencies.
- Facilitate the transport of individuals working in private plants that manufacture materials for the Coast Guard.
- Deploy U.S. troops to any foreign country, which could include transportation considerations.
The President's powers to control domestic transportation during a national emergency are intended to provide the necessary flexibility to address urgent situations. However, it is important to note that there have been concerns raised about the potential for abuse and the need for stronger checks and balances to ensure these powers are used appropriately.
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Authority to shut down communications facilities
The Communications Act of 1934, amended in 1942, allows the US President to take over or shut down radio or wire communications facilities if they declare a national emergency or perceive a threat of war. This provision was last invoked during World War II, when wire communications included telephone calls and telegrams. In the modern era, this provision could be interpreted to allow the President to exert control over US-based internet traffic, television stations, and other means of communication.
The President's authority to shut down communications facilities is derived from Section 706 of the Communications Act, disguised as U.S. Code § 606. This section enables the President to take control of "any facility or station for wire communication during a state or threat of war." While the internet is not directly governed by the US government, this law grants the President the power to order internet companies and other communication channels to cease operations for an unspecified duration.
The potential for abuse of power and civil rights violations under an authoritarian president is a significant concern. The Brennan Center for Justice has documented that declaring a national emergency grants the President access to over 130 distinct statutory powers. This includes the ability to control or shut down domestic transportation, suspend the Clean Air Act, and seize Americans' private property.
To address these concerns, Senators Mike Lee (R-UT) and Richard Blumenthal (D-CT) introduced the bipartisan ARTICLE ONE Act. This act aims to reassert congressional authority over emergency declarations and includes expedited procedures to avoid Senate filibusters. Under the ARTICLE ONE Act, a national emergency declared by the President would automatically terminate after 30 days unless a majority in both chambers of Congress vote to extend it. If extended, the emergency would continue for one year, after which the President would require Congressional approval for additional one-year renewals.
In preparation for potential communication shutdowns, individuals can develop emergency plans and identify alternative methods of communication, such as face-to-face conversations or non-digital means.
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Ability to seize Americans' private property
The ability of a president to seize Americans' private property during a national emergency has been a concern for many Americans. This is because declaring a national emergency grants the president access to over 130 special authorities, which can be used to intervene in ways that are not available outside of an emergency declaration.
The president's ability to seize private property is not a new phenomenon. In 1916, in anticipation of World War I, Congress granted the president emergency powers to seize materials, plants, and transport systems. During World War II, there was an even greater attenuation of private rights in the labor market, with the War Manpower Commission attempting to impede labor mobility, reallocate workers, and control hiring practices.
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, which did not require the president's signature. However, the Supreme Court declared such "legislative vetoes" unconstitutional in 1983, leaving emergencies easy to declare and hard to stop.
Despite the NEA, the president still has broad powers during a national emergency, including the ability to seize private property. This power has been used by presidents of both parties to achieve policy objectives outside of Congress. For example, President Trump declared a national emergency at the southern border to override congressional refusal to fund a border wall, and President Biden relied on emergency powers to attempt to forgive student loan debt during the COVID-19 pandemic.
While the president has the authority to seize private property during a national emergency, there are some limitations. The Fifth Amendment of the United States Constitution prohibits private property from being taken publicly without just compensation. Additionally, the Eminent Domain Act states that governments may only take private land for public use if the owner receives a fair deal.
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Powers to deploy US troops to foreign countries
The US President has the power to deploy US troops to foreign countries in response to a national emergency. This power has been used by several presidents in the past, including President Truman, who sent troops to Korea without seeking congressional authorization, and President Nixon, who conducted secret bombings of Cambodia during the Vietnam War without notifying Congress.
The War Powers Resolution outlines the rules regarding the deployment of US troops by the President. According to this resolution, the President must submit a written report at least 48 hours in advance to the Speaker of the House and the President pro tempore of the Senate when introducing US armed forces into a foreign conflict. The report must include the reasons for the deployment, the constitutional and legislative right under which the deployment is taking place, and the estimated scope and length of the involvement in the conflict.
The President is also required to routinely consult with Congress until the US armed forces are no longer engaged in hostilities or have been removed. This consultation includes providing reports to the House Committee on Foreign Affairs and the Senate Foreign Relations Committee. The War Powers Resolution further states that the deployment of troops to conflict and the stationing of troops past 60 days require prior congressional approval.
The interpretation and application of the War Powers Resolution have been a subject of debate between Congress and the Presidency, with some arguing that it infringes on the President's constitutional authority to protect US interests and national security. However, the resolution emphasizes the importance of congressional oversight and approval in the deployment of US troops, especially in situations of imminent hostilities or when substantially enlarging the number of troops in a foreign nation.
In addition to the War Powers Resolution, the National Emergencies Act (NEA) also provides the President with certain powers during a national emergency. The NEA allows the President to activate emergency provisions of law, such as controlling transportation and communications, by making an emergency declaration. However, the NEA does not specifically address the deployment of troops, and the President's power in this area is primarily governed by the War Powers Resolution and other relevant statutes.
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Ability to bypass congressional action
The US President has the authority to declare a national emergency, which allows them to temporarily use certain powers that Congress has previously approved. This is because Congress cannot always act quickly enough to respond to certain situations, such as natural disasters and public health emergencies.
The National Emergencies Act (NEA), passed in 1976, authorises the President to activate emergency provisions of law via an emergency declaration. However, the President must specify the provisions activated and notify Congress. The NEA has been used by presidents of both parties to circumvent the presidency's normal legal constraints 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 congressional refusal to fund a border wall.
The NEA provides over 130 special authorities, including the authority to shut down communications facilities, control domestic transportation, suspend the Clean Air Act, and seize Americans' private property, bank accounts, and even their defence contracts. The NEA also allows the President to alter automatic adjustments to federal pay schedules after reporting to Congress.
The President can renew emergency declarations annually, and a joint resolution passed by both chambers of Congress requires the President's signature, giving them veto power over the termination. However, this has been criticised as lacking adequate safeguards to prevent abuse.
To address this, Senators and Representatives from both parties introduced the bipartisan, bicameral ARTICLE ONE Act to reassert congressional authority over emergency declarations. The act would terminate a declaration of national emergency made by the President after 30 days unless a majority in both chambers of Congress vote to continue the emergency.
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Frequently asked questions
A national emergency is a situation that requires an immediate and decisive response from the government, such as natural disasters or public health emergencies.
Upon declaring a national emergency, a president can access over 130 special authorities. These include the ability to shut down communications facilities, suspend the Clean Air Act, seize Americans' private property, and deploy U.S. troops to any foreign country.
The National Emergencies Act is a law passed in 1976 that authorizes the president to activate emergency provisions of law via an emergency declaration. The act also allows Congress to terminate a national emergency with a majority vote through a concurrent resolution.
Congress can terminate a national emergency by passing a joint resolution in both chambers, which requires a presidential signature. Alternatively, Congress can also allow the emergency declaration to expire by not renewing it annually.
President Trump declared a national emergency in 2019 to secure funding for a border wall, which Congress had previously denied. President Biden used emergency powers in 2021 to attempt to forgive student loan debt during the COVID-19 pandemic.
