The National Emergencies Act of 1976 was part of a series of post-Nixon measures to limit presidential power+ READ ARTICLE
President Trump announced he’s signing a proclamation on Friday declaring a national emergency to free up billions of dollars to build his wall on the U.S.-Mexico border. The move is the latest in a two-month showdown that included a 35-day partial government shutdown. Congress only voted to allocate $1.375 billion for border barriers – far short of the $5.7 billion Trump wanted.
It may seem like a drastic action, but he is hardly the first American president to take extraordinary steps for what he sees as the interest of the nation.
In fact, not only are national emergencies more common than most Americans probably realize, the nation is already subject to dozens of emergency declarations that are ongoing today.
From Abraham Lincoln’s decision to suspend habeas corpus in 1861 to Harry Truman’s ordering the Secretary of Commerce to seize control of the steel mills amid a 1952 wartime strike, presidents have occasionally seen fit to step outside the bounds of normal government. By proclaiming a national emergency, the President “may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens,” according to a 2007 Congressional Research Service report.
But while scholars agree that the power to declare a national emergency is in fact implied within the executive powers given to the President by the Constitution, there’s at least one big difference between Trump’s situation and that of Lincoln or Truman.
Trump acts in an era in which presidents are required by law to take some additional steps when declaring a national emergency, thanks to the National Emergencies Act of 1976, signed by President Gerald Ford. In theory, it requires the President to spell out the powers from specific laws that make it legal for him to declare a national state of emergency, and requires the House and the Senate to review such a declaration every six months to see if it’s still necessary. To end a national emergency, both chambers of Congress could pass a joint resolution.
“The original idea for the law was to formalize the process because, in the past, presidents had simply proclaimed national emergencies and they went on indefinitely,” says Chris Edelson, author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, and professor of Political Science at American University.
Edelson characterizes this law as one of several passed after the Nixon presidency, fresh off Watergate and the Vietnam War, when Congress — all too aware of how a presidency could take a turn for the worse — took deliberate steps to safeguard against a president acting unilaterally. That was the same period that gave the United States the Ethics in Government Act and the Foreign Intelligence Surveillance Act, for example.
In reality, however, the law has proved little-used. A 2014 USA Today investigation reported that Congress has renewed them without doing the required periodic check-ins. Thirty-one of the national emergencies declared via the National Emergencies Act since 1976 are technically still in effect, having never been formally ended, according to CNN. Just as presidents have declared war without Congressional approval, even after the War Powers Resolution was passed in that same mid-1970s era, presidents have exercised their right to declare an emergency without much practical worry about being checked.
In terms of why this power hasn’t been reigned in more, partisanship could be at play. Edelson suggests it’s possible that, while members of Congress know they can curtail the President’s power to declare a national emergency, they may not be inclined to do so if the President is also the head of their party. The matter is also an example of how different people in government may have different interpretations of the extent of presidential powers. Some lawmakers may, despite the 1976 act, feel that the president must retain this particular power for the sake of national safety.
“The Constitution doesn’t grant emergency powers to the President, but some people think that power is implied,” says Edelson, “and some members think presidents should have this power.”
Ongoing U.S. National Emergencies
Though the word emergency might imply a temporary situation, a look at the list of times the president has used that power makes it immediately clear that a national emergency is something different.
Here’s a list of national emergencies that were declared after the passage of the National Emergencies Act that are still technically in effect as of Jan. 8, 2019, as listed in the Federal Register.