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ISSUE

National Emergencies

Published:2019-Feb-15
Last Updated:2019-Mar-18
Principal Writer:Barry Shatzman

Issue Sections

Understanding The Issue
Issue Status

Reported News

National Emergencies

Related Bills

Terminating National Emergency

2019 (HJRes-46)

National Emergencies Act

1976 (HR-3884)

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Introduction

On Feb. 15, 2019, President Donald Trump declared a national emergency for the purpose of obtaining more than $6 billion to build a 200-mile barrier along the country's border with Mexico.

National emergencies are not uncommon. They have been declared by every recent president. Several (going as far back as President Jimmy Carter) still are active.

In this discussion we explain how they work - helping you understand the issues involved in any national emergency declared by a president.

What is an "emergency"?

Emergency typically is defined as a combination of circumstances requiring immediate action.

Current laws don't restrict national emergencies to meeting that definition. A national emergency can be anything the president declares to be one.

Most previously declared emergencies relate to sanctions or export restrictions. A few relate to weapons proliferation. Others include the 2009 swine flu outbreak, the terror attacks on Sept. 11, 2001, vessel movement near Cuba, rough diamonds from Sierra Leone, and sale of Iraqi oil.

What can a president do?

The Constitution grants the president only one emergency power... the ability to suspend habeus corpus - which would allow for detentions without needing to provide a justification.

Any other emergency powers must be granted by Congress. Congress has provided for more than 100 emergency powers that can only be invoked if a president declares a national emergency.

These powers possibly allow a president to...

o Seize property.
o Institute martial law, and use the military to stop protests.
o Freeze financial assets - excluding someone from a job or housing.
o Assert control over communications - including the Internet.
o Control transportation and restrict travel.
o Indefinitely detain - or kill - enemy soldiers.
o Test biological and chemical agents on unwitting human subjects.
o Appropriate funds in a way that Congress did not specifically authorize.
o Undertake military construction projects.

Some of these powers are open to interpretation or not technically feasible. For example, a court could rule that the Communications Act - enacted in 1934 - would not include the Internet. However, a president could assert these powers and possibly keep them in force until the Supreme Court eventually ruled on them.

When declaring a national emergency, the president much state which specific emergency statutes will be invoked. Nothing in the law requires any particular power invoked to relate to the nature of the emergency.

Congress can terminate an emergency, but it isn't easy

Because it's easy for a president to declare a national emergency, the National Emergencies Act (NEA) was enacted in 1976 to provide Congress ways to end an emergency.

To terminate an emergency, Congress would pass a joint resolution. A presidential veto would be likely, however, since it was the president who declared the emergency. So for practical purposes, the resolution would require the support of two-thirds of both the House of Representatives and the Senate.

The law also specifies that an emergency end after one year. A president can renew the emergency, however.

National emergencies are the rule rather than the exception

The U.S. has been under one or more national emergencies continuously in the past 40 years.

The Congressional Research Service (CRS) lists about 50 declared national emergencies - about 30 of which still are active.

PRESIDENTACTIVEEXPIRED
Carter 1 1
Reagan 0 4
GHW Bush 0 4
Clinton 6 8
GW Bush 10 2
Obama 10 2
Trump 3 0


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