National Emergencies Act

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National Emergencies Act
Great Seal of the United States
Long title An Act to terminate certain authorities with respect to national emergencies still in effect, and to provide for orderly implementation and termination of future national emergencies.
Acronyms (colloquial) NEA
Enacted by the 94th United States Congress
Effective September 14, 1976
Citations
Public law 94-412
Statutes at Large 90 Stat. 1255
Codification
Titles amended 50 U.S.C.: War and National Defense
U.S.C. sections created 50 U.S.C. ch. 34 § 1601 et seq.
Legislative history

The National Emergencies Act (Pub.L. 94–412, 90 Stat. 1255, enacted September 14, 1976, codified at 50 U.S.C. § 1601–1651) is a United States federal law passed to stop open-ended states of national emergency and formalize the power of Congress to provide certain checks and balances on the emergency powers of the President. The Act of Congress imposes certain procedural formalities on the President when invoking such powers. The perceived need for the law arose from the scope and number of laws granting special powers to the executive in times of national emergency.

The H.R. 3884 legislation was passed by the 94th United States Congress and signed by the 38th President of the United States Gerald R. Ford on September 14, 1976.[1]

Background

The first President to issue an emergency proclamation[2][3] was Woodrow Wilson, who on February 5th, 1917, issued the following:

I have found that there exists a national emergency arising from the insufficiency of maritime tonnage to carry the products of the farms, forests, mines and manufacturing industries of the United States, to their consumers abroad and within the United States[4]

This proclamation was within the limits of the act that established the United States Shipping Board.

Starting with Franklin D. Roosevelt in 1933, presidents asserted the power to declare emergencies without limiting their scope or duration, without citing the relevant statutes, and without congressional oversight.[5] The Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer limited what a president could do in such an emergency, but did not limit the emergency declaration power itself. A 1973 Senate investigation found (in Senate Report 93-549) that four declared emergencies remained in effect: the 1933 banking crisis with respect to the hoarding of gold,[6] a 1950 emergency with respect to the Korean War,[7] a 1970 emergency regarding a postal workers strike, and a 1971 emergency in response to inflation.[8] Many provisions of statutory law are contingent on a declaration of national emergency, as many as 500 by one count.[9] It was due in part to concern that a declaration of "emergency" for one purpose should not invoke every possible executive emergency power, that Congress in 1976 passed the National Emergencies Act.

Presidents have continued to use their emergency authority subject to the provisions of the act, with 42 national emergencies declared between 1976 and 2007.[10] Most of these were for the purpose of restricting trade with certain foreign entities under the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1701–1707).

Provisions

Termination of presidential authority

A prior Senate investigation had found 470 provisions of federal law that a President might invoke via a declaration of emergency.[11] The Act repealed several of these provisions and stated that prior emergency declarations would no longer give force to those provisions that remained. Congress did not attempt to revoke any outstanding emergency declarations per se, as these remained the President's prerogative under Article II of the Constitution.[12]

Procedure for new emergencies

The Act authorized the President to activate emergency provisions of law via an emergency declaration on the conditions that the President specifies the provisions so activated and notifies Congress. An activation would expire if the President expressly terminated the emergency, or did not renew the emergency annually, or if each house of Congress passed a resolution terminating the emergency. After presidents objected to this "Congressional termination" provision on separation of powers grounds, it was replaced in 1985 with termination by an enacted joint resolution. The Act also requires the President and executive agencies to maintain records of all orders and regulations that proceed from use of emergency authority, and to regularly report the cost incurred to Congress.

Exceptions

Certain emergency authorities were exempted from the act at the time of its passage:

  • 10 USC 2304(a)(1) (allowing exemption of national defense contracts from competitive bidding)
  • 10 USC 3313, 6386(c) and 8313 (regulating the promotion, retirement and separation of military officers)
  • 12 USC 95(a) (regulating transactions in foreign gold and silver)
  • 40 USC 278(b) (regulating federal property purchases and contracts)
  • 41 USC 15 and 203 (limiting the assignment of claims against the federal government)
  • 50 USC 1431–1435 (enabling the President to make national defense contracts outside of otherwise applicable rules)

The list of exceptions has from time to time been revised. For example, Public Law 95-223 (1977) repealed the emergency clause of 12 USC 95(a) and arranged for its authority to expire according to the normal provisions of the NEA.

Emergency powers

Congress has delegated at least 136 distinct statutory emergency powers to the President upon the declaration of an emergency, with only 13 of these requiring a declaration from Congress.[13]

Emergency presidential powers are dramatic, and range from suspending all laws regulating chemical and biological weapons, including the ban on human testing (50 U.S.C. § 1515, 1969); to suspending any Clean Air Act implementation plan or excess emissions penalty upon petition of a state governor (42 U.S.C. (f) § 7410 (f) 1977); to authorizing and constructing any unauthorized construction (10 U.S.C. (a) § 2808 (a), 1982) using any existing defense appropriations for any military constructions ($10.4 billion in FY2018[14]); to drafting any retired Coast Guard officers (14 U.S.C. § 331, 1963) or enlisted members (14 U.S.C. § 359, 1949) into active duty.

Other emergency frameworks

Beyond the National Emergencies Act, Congress has established three other emergency power frameworks:

See also

References

  1. Peters, Gerhard; Woolley, John T. "Gerald R. Ford: "Statement on Signing the National Emergencies Act.," September 14, 1976". The American Presidency Project. Santa Barbara: University of California.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  2. Declaring and Terminating a State of National Emergency
  3. National Emergency Powers
  4. Proclamation 1354 — Emergency in Water Transportation of the United States
  5. H. Rep. No. 95-459, at 7 (1977)
  6. Executive Order 6102
  7. Peters, Gerhard; Woolley, John T. "Harry S. Truman: "Proclamation 2914 – Proclaiming the Existence of a National Emergency," December 16, 1950". The American Presidency Project. Santa Barbara: University of California.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  8. S. Rep. No. 93-549, at 2 (1973), http://www.ncrepublic.org/images/lib/SenateReport93_549.pdf
  9. [1]
  10. Harold C. Relyea (Aug 30, 2007). "National Emergency Powers" (PDF). Congressional Research Service. Retrieved Jan 7, 2019.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  11. Senate Report 93-549, Emergency Powers Statutes
  12. Miller, Diana (2002) Terrorism: Are We Ready? pp. 130–31.
  13. "Emergency Powers". Brennan Center for Justice. Retrieved 7 January 2019.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  14. FY2018 Military Construction Authorizations and Appropriations (Report). Congressional Research Service. 6 June 2018. R45217.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>

Bibliography

  • F.J. Murray, "Wartime Presidential Powers Supersede Liberties," Washington Times, Sept. 18, 2001, pp. A1, A12, as quoted in Ref. 2.
  • H.C. Relyea, "Martial Law and National Emergency", Congressional Research Service Report for Congress RS21024, updated January 7, 2005: https://fas.org/sgp/crs/RS21024.pdf.
  • H.C. Relyea, "National Emergency Powers", Congressional Research Service Report for Congress, order code 98-505 GOV, updated September 18, 2001: https://fpc.state.gov/documents/organization/6216.pdf.
  • H.C. Relyea, "National Emergency Powers", Congressional Research Service Report for Congress, order code 98-505 GOV, updated November 13, 2006: https://fas.org/sgp/crs/natsec/98-505.pdf.
  • "Toward Comprehensive Reform of America's Emergency Law Regime," including compendium of national emergency powers SSRN 2056822

External links