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The “411” on “National Emergency”
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.
50 U.S. Code § 1622 – National emergencies
(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.
Published in Politics
http://fortune.com/2019/01/10/states-of-emergency-since-1979/
U.S. leaders have declared national emergencies for decades, with 58 of them on the books since 1979 when President Jimmy Carter signed an order to block Iranian government property from entering the country, according to Pacific Standard. Although Carter signed the order in response to the Iran hostage crisis, it remains in effect and was extended in November 2018.
I think it would be really hard to lay out definitions or guidance for what constitutes a “national emergency”, which is why it is vague.
Exactly so. In such cases, Congress gives itself the out of requiring reports and articulating an oversight function. That is a fair chunk of the statutory verbiage in the OP.
So Cliff, I am trying to also watch a football game here. Can Trump build the wall and not be held up by a lawsuit or cannot he?
Which declaration was made under similar circumstances?
An “emergency” must be at minimum a relatively new and extraordinarily pressing matter. The authority presumably exists so the Commander in Chief can address a problem with haste because Congress lacks sufficient time to deliberate. It is, in other words, an extension of the Executive role in dealing with extraordinary events.
Border concerns are not new, extraordinary, or especially time-sensitive. The President cannot justify the wall by any reasoning not equally applicable a decade ago.
There is no emergency. Let’s pretend words matter.
However, on the state’s rights side of things, are you yet aware of how California’s various restrictions mean that due to “the emergency” of perhaps there being a crying unhappy baby at the border, or someone being dealt with unfairly by the “racist agency ICE” that ICE’s ability to detain worrisome people has been seriously impacted. Ask Kate Stenle’s family how they feel about their daughter’s killer not being deported after a marijuana arrest. Or the families of the two Calif police officers killed by immigrants not here legally, over the past two weeks.
The question here for me doesn’t necessarily turn on the legality. I don’t care if every Supreme Court Justice who ever lived looked at the statute and said, “Yep, Congress gave him the unlimited authority to declare anything he wants to be a national emergency. He could declare his hangnail to be a national emergency if he wants to and usurp a billion dollars of Army funds to construct the most powerful and sophisticated set of fingernail clippers the world has ever seen, and there’s not a damn thing you can do about it.”
Even if determined to be lawful, this declaration (if he does it) is still a gross power grab, sets a terrible precedent that will be abused forever, and more than enough reason to walk on broken glass to vote against him when he’s up again for election. And that comment has nothing to do with Trump as Trump. I would say that about absolutely any president who tried to do this, whether it was Obama, Romney, Bush, Rubio, or anyone else, from the swampiest establishment stooge who ever lived right across to the fringiest outsider lunatic. It’s a tyrant’s move, legal or not.
It’s a serious problem and a pressing one. But it’s decades old and a matter of policy.
The President and US Congress surely do have authority to severely punish states that violate citizenship and national border laws.
Well reasoned and logical…so much so that one might really want to believe it. But there is no “must be at minimum” and words really don’t matter in this post-constitutional rotting husk of a republic. Just off the top of my head, I used to think that “at minimum” we could agree that retroactive legislation (like tax hikes) would be, if not unconstitutional, at least universally accepted as un-American or that the meaning of clear wording like “60 days” and “hostilities” (War Powers Act) or “established by the State” (PPACA) would not be malleable to any progressive impulse of the collective beltway class. Silly me. To paraphrase none other than Mr. Conservatism himself:
Words and logic don’t mean a damn thing anymore.
As I understand it, there is no quarrel with the meaning of those terms in the War Powers Act; rather Presidents have rejected the limits of the law as unconstitutional infringement on the inherent power of the Commander in Chief.
@aaronmiller, I would invite you to think about how the Democrat attitude toward illegal immigration has shifted in the past decade. Whereas politicians would exploit the phenomena they would publicly decry it and support policies (up to a point and avoiding effectiveness) that were at least generally supportive of law. But just tracking the rhetoric, the Democrat policy promoters are decidedly against supporting national borders and identity. That is the emergency and it is the signal internationally that now is the time to get a move on our borders using asylum demands as the wedge. Note that “caravans” are organized. That is the emergency.
I believe, and don’t quote me here, it has the same or less specificity as “high crimes and misdemeanors”.
But short of 2/3rds vote, can Congress halt the president’s response to his declared emergency by withholding funding?
That’s not what the Iran national emergency is, but it’s still a “national emergency”.
Border convoys are.
But securing the border is his job.
And 0bama led the charge for 0bamacare which was quasi-legal at best, being initiated in the Senate and then reconciled backwards to the House. And in the end no one said a thing, not even Roberts (who could have just as easily invented a pretext for examining the propriety of the constitutionality of the bill’s origin, voting and passage).
regularizeregulate interstate commerceOf course there can, and will, be a lawsuit. There always is.
AND this situation may provide the very best chance to push the U.S. Supreme Court to reign in activist judges in the 9th Circuit. The fact that this situation is most directly tied to the territorial jurisdiction (the area on the map) assigned to a limited number of federal district courts, in three different Circuits, opens up the ability of border wall supporters to get into courts outside the 9th Circuit and effectively countering any nationwide injunction issued under the 9th Circuit.
I briefly explain that in Declare National Border Emergency, Kill Two Birds with One Stone. Here is the relevant sentence:
First, there is arguably an “emergency,” however much you may wish it otherwise. Facts of the ground have actually changed significantly, as the Administration is being careful to articulate.
Second, I agree that words matter. The Congress passed a vague law with fairly weak limits and oversight. It may well be that Congress should finally take its responsibilities seriously and try to define “national emergency.” I doubt they will, as it is not an easy thing to tighten up legislation without placing them all on the hot seat if Something Very Bad happens that they inadvertently cut out of their definition of “national emergency.” This is worth its own post. Maybe I’ll do that, if someone else does not.
No. Because the only funds he can use, under the laws he would have to invoke, are already appropriated AND not yet obligated within the particular programs the relevant laws govern. There is no “withholding” because Congress already gave the money to the Administration for the relevant programs.
Note, all of this is only relevant to FY 2019 appropriations. At the stroke of midnight, when September 2019 turns to October 2019, the available funds are no more.
I am not sure how you are stating that the situation here in Calif is decades old? Only recently have we had a Calif Attorney General, Xavier Becerra, who has told employers there will be legal consequences for them should they cooperate with ICE.
Only recently has up become down, dark become light, and legalities and regulations become mere trivialities that can be ignored and shoved aside. The state of California is ruled by edicts and mandates that no electorate is involved with. Sanctuary cities now provide a safe haven for anyone who is wanted by ICE for the rather sane reason that they are dangerous. On a daily basis, ICE is forced to step aside and release people that have been determined to be criminals. Above and beyond all that, the election process in this state has been flippable, controllable and now totally in the hands of a Democrat Party leadership.
Yet it bothers you that the President has the good sense to announce that this is an invasion and it is an emergency. If he is not allowed to act now, the word will be made clear to many tens of thousands of people south of the border that there is absolutely no reason not to head north to the Calif border. Once at the border, the obstacles of hill and fence are so minor that an individual can easily climb the hill and scale the wall, carrying a kid on their back as they come over. Tijuana is now in an unlivable situation, as so many people are entering that city that long time residents realize the only way to return to a normal life is to find a different part of Mexico to inhabit.
Aron Miller
“There is no emergency. Let’s pretend words matter.”
Words matter but so does basic understanding of how human mobs, herds and stampedes work. Several examples; we knew there was a housing bubble but any attempts to reign in Fanny and Freddy were met with charges of racism so reformers backed off, then fear took hold and a situation that was of concern to those who understood but not an emergency turned into a trillion dollar emergency. All financial panics are the same. We go from what appears normal dysfunction to collapse in an instant.
Similarly cowboys regularly round up steers on the drive, but when something scares a few all of the rest stampede with them. That’s an emergency and they have to be stopped or they lose most of them. That’s why we call financial panics and collapse stampedes. It’s how humans behave under certain circumstances. There is another invasion being organized in Honduras right now, bigger than the last, and these caravans are big enough to noticed. Others, all over the world are packing their bags but are not in our sights. Including those who will attempt to get non immigrant visas and then disappear.
It is widely perceived that we’ve lost control of our border and that now is the time to penetrate it. Moreover, one of the political parties wants to legalize those who are here, and once here there is no way to find them. The perceived risk reward has been changed by the spreading knowledge of our ineptitude, divisions, and political gridlock and the risks have been reduced by the shear numbers, they don’t have to pay thousands to coyotes, just join the mob. The far left has always understood the correlation of forces better than most Americans, that is why they are incessantly pushing these invasions even as they thwart our ability to deal with them. We must turn it back and reestablish control or it wont stop. That is what the Democrats are hoping for. It is obviously an emergency and it will get worse.
“Are you serious? Are you serious?”
That’s what the tyrants always say.
Faithfully executing the laws and supporting the Constitution is his job. Suddenly declaring an emergency where none exists so he can bypass Congress violates that oath, in my opinion. Again, I don’t care if it is technically legal because Congress failed to more precisely define “national emergency.” It’s still an awful thing to do, gives tons of cover to future power grabs by Democrats and provides ample reason to vehemently oppose his re-election.
The Stamp Act was technically legal, taxation without represtation was technically legal, the Intolerable Acts were technically legal. Didn’t make them acceptable to our colonial forbearers.
According to the Federal Register, 58 national emergencies have been declared since the National Emergency Act of 1976 was signed into law by President Gerald Ford.
And 31 have been annually renewed and are currently still in effect, as listed in the Federal Register.
If multiple emergencies are still in effect regarding the Sudan, Iran, nuclear weapons , the Balkans etc etc etc, the southern border of our nation is certainly an emergency.
Exactly. And it’s one of the reasons I enrhusiastically voted again Obama.
Preseving the structure of the government, the restrictions and checks on the powers of the various branches is the most important thing conservatives can do. It’s far more important than the Wall, even if the Wall is a great policy win.
This would not be abusing existing authorities. It is a real emergency. The long term effect of not establishing control of our borders is to tip our politics toward the administrative state, more crime, more disorder. Nothing good will come of it. Nothing bad other than more Democrat hysteria, will come from the wall.
It seems to me that the discussion on illegal immigration and the right response to it is tied to how hard it is to face life threatening situations, accept their likely consequences and act on them. When we lived in California I knew NO ONE who had not been either directly (our car was totaled by a illegal driving a company truck on personal time and therefore not insured by company insurance,) indirectly (public schools became chaotic when the state required schools to teach children speaking dozens of languages in their native languages) or passively (taxes increased to fund welfare programs for illegals.) One only has to read VDHanson’s work over the last decade to experience the total degradation of a large swath of not-Coastal California. New England judges seem to us to be doing their best “accommodate” the illegals who traffic wholesale in drugs and people, so that path is well trod.
Would it seem more like an emergency or life threatening if the people seen at the border and turning up in remote communities were more obviously armed and wore uniforms of a foreign jurisdiction? Words matter, but they can also be used as temporary shields against reality approaching, or to stop others from responding to the situation. What’s apparent (and highlighted as really significant) when you read after action reports of disasters -natural or otherwise – is that the mostly likely to survive a disaster are those who responded immediately to the event and took steps to survive. Taking perfect steps wasn’t the decisive factor. Acting immediately – with absolute focus on survival – in the face of threat was. Notably, those who survive are first celebrated and then treated with suspicion: how did he cheat?
So – I think invasion by non-citizens (apparently armed or not) is an emergency and I think it’s the (current) President’s responsibility to lead the country in an immediate response – just as it was the responsibility of all the then-Presidents after 1965 to respond to the effects of the 1965 Immigration Act. They didn’t. He has to. And he won’t be loved for it.
It’s not quite that simple. There are such things as multi-year appropriations. Whether any of them would be accessible under the relevance requirement is unknown.