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National Emergencies Act
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- This is an article about the 1976 National Emergencies Act. For information about the Stafford Act, the law that empowers the Federal Emergency Management Agency (FEMA) to respond to disasters, click here.
The National Emergencies Act (NEA) is a federal law passed in 1976 that established the ground rules for how the federal government responds to national emergencies. The NEA ended or changed earlier legal grants of emergency authority to the president.[1]
When he signed the law, President Gerald Ford said that its purpose was to "reform the maze of statutes which [had] resulted from the states of emergency under which the country [had] been operating for over 40 years" and to allow future presidents to declare national emergencies with congressional review.[2]
Originally, the law allowed Congress to end a declared emergency using a concurrent resolution, which does not require the president's signature to go into effect.[1] Using concurrent resolutions in that manner was similar to the legislative vetoes ruled unconstitutional by the U.S. Supreme Court in INS v. Chadha (1983).[1] Following the Chadha case, Congress amended the NEA in 1985 to allow Congress to end emergency declarations through joint resolutions, which require the president's signature.[1]
Presidents had declared 62 emergencies under the 1976 NEA with 34 of those still in effect and 28 expired as of September 6, 2019.[3] President Donald Trump (R) has declared six emergencies related to border security, election security, and cybersecurity.[3]
According to a 2018 study, there are 123 powers available to presidents once they declare a national emergency and 13 others available if Congress makes the declaration.[4] Beyond the NEA, the Public Health Service Act and the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) govern procedures that presidents must follow in the case of specific kinds of emergencies.[4]
Background
Before World War I, presidents issued proclamations to announce when they were using emergency powers.[1] Between World War I and the passage of the National Emergencies Act (NEA) in 1976, presidents declared emergencies and used emergency powers with some congressional regulation.[1] Congress passed permanent and standby laws that allowed the president to access emergency powers when necessary.[1] There were 470 provisions in various laws passed before 1976 that gave presidents emergency powers.[1]
A Congressional Research Service study of national emergency powers found that before the NEA different standby laws delegated to the president the power to do the following:[1]
- Seize property
- Organize and control of the means of production
- Seize commodities
- Send military forces overseas
- Institute martial law
- Seize and control all transportation and communication
- Regulate the operation of private enterprise
- Restrict travel
When he signed the NEA, President Gerald Ford (R) said that its purpose was to "reform the maze of statutes which [had] resulted from the states of emergency under which the country [had] been operating for over 40 years."[2]
Provisions
The National Emergencies Act (NEA) consists of five titles.[1] The first returned most emergency powers to standby and required a new declaration of emergency to reactivate them.[1] Title II set the procedures for presidents to declare a national emergency and for Congress to regulate that power.[1] Titles III and IV instructed presidents to explain which powers they were activating in each case of emergency and set up reporting requirements.[1] Title V repealed or continued different statutes that delegated emergency powers.[1]
The NEA made the following changes to the laws governing national emergencies:[1]
- Required presidents to issue formal declarations when a national emergency exists
- Required presidents to cite the statutory powers he would use during a national emergency
- Allowed Congress to oppose presidential declarations and/or the powers he might cite
Text of the National Emergencies Act of 1976
1985: Changes to Congressional oversight
The original NEA allowed Congress to pass a concurrent resolution in both houses in order to terminate a declaration of national emergency.[1] Concurrent resolutions are legislative agreements not submitted to the president.[5] The U.S. Supreme Court ruled that using such resolutions as a legislative veto over executive action was unconstitutional in the 1983 case, INS v. Chadha.
Following INS v. Chadha, Congress amended the NEA in 1985 to allow Congress to end national emergency declarations using joint resolutions, which are signed by the president before they have the force of law.[1]
Declarations under the National Emergencies Act
Even with the reporting requirements specified by the NEA, different sources count the number of declared and active national emergencies in different ways. A Congressional Research Service chart updated in August 2019 shows 53 total emergencies declared since the 1976 NEA.[1]
The Brennan Center for Justice compiled a list of 62 national emergencies that presidents have declared under the National Emergencies Act. The center concluded that 34 of those national emergencies are still in effect and 28 had expired, as of September 6, 2019.[3]
Support and opposition
Scholars disagree about the extent of discretion presidents should have to respond to emergency situations before Congress can act.
Elizabeth Goitein, co-director of the Liberty & National Security Program at the Brennan Center for Justice made the following argument in an article in The Atlantic:[6]
| “ | Unknown to most Americans, a parallel legal regime allows the president to sidestep many of the constraints that normally apply. The moment the president declares a 'national emergency'—a decision that is entirely within his discretion—more than 100 special provisions become available to him. While many of these tee up reasonable responses to genuine emergencies, some appear dangerously suited to a leader bent on amassing or retaining power. For instance, the president can, with the flick of his pen, activate laws allowing him to shut down many kinds of electronic communications inside the United States or freeze Americans’ bank accounts. Other powers are available even without a declaration of emergency, including laws that allow the president to deploy troops inside the country to subdue domestic unrest.
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” |
L. Elaine Halchin, writing for the Congressional Research Service, emphasized the limits placed on presidential emergency powers in an August 2019 report:[1]
| “ | There are, however, limits and restraints upon the President in his exercise of emergency powers. With the exception of the habeas corpus clause, the Constitution makes no allowance for the suspension of any of its provisions during a national emergency. Disputes over the constitutionality or legality of the exercise of emergency powers are judicially reviewable. Both the judiciary and Congress, as co-equal branches, can restrain the executive regarding emergency powers. So can public opinion. Since 1976, the President has been subject to certain procedural formalities in utilizing some statutorily delegated emergency authority.
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” |
See also
External links
Footnotes
- ↑ 1.00 1.01 1.02 1.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 Congressional Research Service, "National Emergency Powers," Harold C. Relyea and Elaine Halchin, accessed March 19, 2019
- ↑ 2.0 2.1 The American Presidency Project, "Gerald R. Ford Statement on Signing the National Emergencies Act," accessed March 19, 2019
- ↑ 3.0 3.1 3.2 Brennan Center for Justice, "Declared National Emergencies Under the National Emergencies Act," accessed September 6, 2019
- ↑ 4.0 4.1 Brennan Center for Justice, "A Guide to Emergency Powers and Their Use," September 4, 2019
- ↑ United States Senate, "Glossary Term: Concurrent Resolution," accessed March 20, 2019
- ↑ The Atlantic, "The Alarming Scope of the President's Emergency Powers," January 2019
- ↑ 7.0 7.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
