Sadly, supposedly expert, professional commentators have continued the lazy practice of bloviating rather than elucidating. Let’s circle back around and lay out the law on “national emergencies.” It is right there for anyone who can read to read, without any special permissions: 50 U.S. Code Subchapter II – DECLARATIONS OF FUTURE NATIONAL EMERGENCIES. Let’s all do a bit of reading together, and then I invite members with relevant legal experience to comment on any relevant case law.
Consider the following law. Think very carefully through the very first sentence. As with some many other areas, where Congress feels a need to “do something” but doesn’t know how to specify, to clearly limit, the usual result is a vague grant of authority to the Executive branch.
The Congress did not choose to clearly delineate what is, and what is not, a “national emergency.” They gave presidents the authority, within other laws, to declare “national emergency,” and to then use provisions of laws that allow particular actions under “national emergency.” This is typical of Congress, normal in legislation.
(a)With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.
(b)Any provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and remain in effect (1) only when the President (in accordance with subsection (a) of this section), specifically declares a national emergency, and (2) only in accordance with this chapter. No law enacted after September 14, 1976, shall supersede this subchapter unless it does so in specific terms, referring to this subchapter, and declaring that the new law supersedes the provisions of this subchapter.
(Pub. L. 94–412, title II, § 201, Sept. 14, 1976, 90 Stat. 1255.)
Consider the language below. Note that a joint resolution is not “enact(ed) into law” without the President signing it, or the House and Senate each responding to a presidential veto with 2/3 votes to override the veto. The checks and balances built in here are Congress making a fuss so the president takes a political hit. If Congress can muster 2/3 in each chamber, or if the President backs off or gives in to political pressure, then the “national emergency” can be cancelled. Congress is extremely unlikely to override the President. Here is the House of Representatives’ page on the entire history of presidential vetoes. Them’s our actual constitutional rules.
(a)Termination methods Any national emergency declared by the President in accordance with this subchapter shall terminate if—(1)there is enacted into law a joint resolution terminating the emergency; or
(2)the President issues a proclamation terminating the emergency.
Any national emergency declared by the President shall be terminated on the date specified in any joint resolution referred to in clause (1) or on the date specified in a proclamation by the President terminating the emergency as provided in clause (2) of this subsection, whichever date is earlier, and any powers or authorities exercised by reason of said emergency shall cease to be exercised after such specified date, except that such termination shall not affect—
(A)any action taken or proceeding pending not finally concluded or determined on such date;
(B)any action or proceeding based on any act committed prior to such date; or
(C)any rights or duties that matured or penalties that were incurred prior to such date.
(b)Termination review of national emergencies by Congress Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated.
(c)Joint resolution; referral to Congressional committees; conference committee in event of disagreement; filing of report; termination procedure deemed part of rules of House and Senate (1)A joint resolution to terminate a national emergency declared by the President shall be referred to the appropriate committee of the House of Representatives or the Senate, as the case may be. One such joint resolution shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee, unless such House shall otherwise determine by the yeas and nays.
(2)Any joint resolution so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents) and shall be voted on within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.
(3)Such a joint resolution passed by one House shall be referred to the appropriate committee of the other House and shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee and shall thereupon become the pending business of such House and shall be voted upon within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.
(4)In the case of any disagreement between the two Houses of Congress with respect to a joint resolution passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such joint resolution within six calendar days after the day on which managers on the part of the Senate and the House have been appointed. Notwithstanding any rule in either House concerning the printing of conference reports or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than six calendar days after the conference report is filed in the House in which such report is filed first. In the event the conferees are unable to agree within forty-eight hours, they shall report back to their respective Houses in disagreement.
(5)Paragraphs (1)–(4) of this subsection, subsection (b) of this section, and section 1651(b) of this title are enacted by Congress—(A)as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and as such they are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in the House in the case of resolutions described by this subsection; and they supersede other rules only to the extent that they are inconsistent therewith; and
(B)with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.
(d)Automatic termination of national emergency; continuation notice from President to Congress; publication in Federal RegisterAny national emergency declared by the President in accordance with this subchapter, and not otherwise previously terminated, shall terminate on the anniversary of the declaration of that emergency if, within the ninety-day period prior to each anniversary date, the President does not publish in the Federal Register and transmit to the Congress a notice stating that such emergency is to continue in effect after such anniversary.
(Pub. L. 94–412, title II, § 202, Sept. 14, 1976, 90 Stat. 1255; Pub. L. 99–93, title VIII, § 801, Aug. 16, 1985, 99 Stat. 448.)
“But, but, but… This just can’t be!” Yes, it can. “No, there must be a definition of ‘national emergency’ that will stop The Great Big Ugly Man!” Sorry, but Congress, when it wants to actually define a term, does so. Usually, you will find terms defined at the very beginning of the law. Go look. See? No definition. Sorry, but this is typical of Congress—always has been.
So, is “national emergency” like “abracadabra?” Does it give the President anything he wants? No. It is only an “open sesame” to access legal authority given in other statutes that specifically refer back to this law. If the language above does not make that clear, the following section does so:
When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specification may be made either in the declaration of a national emergency, or by one or more contemporaneous or subsequent Executive orders published in the Federal Register and transmitted to the Congress.
(Pub. L. 94–412, title III, § 301, Sept. 14, 1976, 90 Stat. 1257.)
I previously laid out law that invokes the “National Emergencies Act (50 U.S.C. 1601 et seq.).” That law then authorizes certain actions by the President. The Supreme Court would almost certainly say this is a “political question” — one of the magic phrases that lets them decide not to decide a case. That is, the Court will likely say that the laws are clear enough, and that the dispute is one to be settled under Article I and Article II, and ultimately by the American voters, through the Electoral College in 2020.