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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
I live in the Houston area and have often shared Victor Davis Hanson’s reports from California. I know the problems first-hand, from crime and uninsured drivers to culture shifts to the shadow society being built and favored. Neither party takes citizenship seriously and that will destroy this nation. But I’m not willing to open wide the gate to an imperial presidency to deal with it because that would also destroy this nation.
I was never a Trump fanatic but have always defended Trump against the nonsense his opponents throw at him. Though the fanaticism I often hear is disturbing, worries about him becoming a dictator always seemed silly while Trump abided by legal restraints and did only the sorts of things past presidents have done. But this “emergency” proposal worries me. This would expand not only Trump’s powers but those of the next Democrat president. Our government’s connection to the Constitution erodes all the time, but let’s not hurry that along.
Trump has powers of diplomacy to deal with the caravans. Mexican government could nip that in the bud if motivated by threats from American officials. Mexico doesn’t tolerate illegal immigration to its own country. Mexican government has ties not just to the cartels but to communists in Russia, China, Cuba, and elsewhere. It’s time to treat Mexico as an enemy state.
This is the crux of our argument. I’ve been viewing it as at least a severe urgency since 2007 or so. It has gotten worse, way worse. The nations such as they are are flouting our laws. Masses of people, many of ill will, are taking advantage of our so-called open border. Political vandals (the socialist left) are actively undermining both US sovereignty and economy. This combination in itself could be viewed as a true emergency.
People wouldn’t be coming here if they didn’t see a cornucopia of gifts that they expect to receive and do receive. If you want to fund and elevate the welfare of unskilled, and uneducated, and foreign-cultured, and illiterate, and non-English-speaking (and English competency is still a good and rational requirement for citizenship) then start with your own home.
But don’t tell us that, as migrants are pouring in in great numbers (what — depending on which point the left wants to make illegal immigrants could be more than 30 million — or one tenth the US population) and draining budgets and perhaps taking jobs from those already here and trying to make a living, that this is not an emergency.
And if we think — rightly — that it’s an emergency, you’re not making a great argument against the president and the use of emergency powers and against the president’s job to secure the border, by saying its a despotic unconstitutional illegal power grab. It’s just not.
I agree. No one knows what any president might find himself doing. But then I thought 0bama was an honest sincere man with a lot of gumption, social skills, moxie and a love for the American people and the American way. And he turned out great. AND he didn’t care about the border.
Now we have a president who legally, constitutionally wants to do something about the border and the left raises its moral head and roars, and those of us on the conservative side are left to say: Who are we to demand that a president do his job?, let’s ignore the law, and the problems of undiminished illegal immigration and the fight from those in the Democrat legislatures and the Press who would ignore and undermine the law, and undermine society, and undermine the efficacy and purpose of elections, and, oh, oh, too bad that allowing the president to do his job, legally, is a step toward — what? — tyranny!
It is less than one quarter of one percent of Federal spending to build a barrier on the southern border. Where many miles of barrier already exist. It isn’t a tyrants move. I’d invite you to read up on the Enabling Act of 1933 if you want an example of a tyrant’s move.
I realize this wouldn’t be the first tyrannical move in history, or the worst. That doesn’t change the nature of this proposed action. Nor does the underlying issue of the wall, the percentage of the budget, etc. That may change the severity, but not then nature of it.
The declaration of emergency power grab, playing fast and loose with the definition of emergency, is the oldest trick in the tyrant’s book. It’s a classic.
If you call the border situation an emergency, then any serious issue is an emergency and the executive power is greatly expanded. Recession hits an unemployment surges? Emergency! Raid the army budget for make-work projects! Gun violence will certainly be an emergency the very second another Democrat takes office. Health care. The Environment, climate change – are you kidding me? It will be a playground for the left. We will never be able to out-emergency them. I don’t know what other emergency powers are sprinkled throughout the US code, but the left will gladly point them out to us.
The danger is in so broadening the de facto definition of “national emergency” that presidents can circumvent Congress to do all sorts of things.
An emergency must be a rare and time-sensitive event. If an emergency can be defined as merely any situation which threatens the well being of society, then the next Obamacare will be enacted on such grounds. “But it’s so important!” could be used as justification for anything. The next president might use such a move to destroy or seize American industries on account of “climate change” hysteria.
I agree with that. But it’s a far cry from a “tyrant’s move.”
What do you mean, “will be”? It’s similar to how there were no terrorist’s until Bush became President.
If any emergency is a power grab, and that is what you’re saying, except for the ones you yourself would act upon if president, is an illegal power grab, then change the law. This bad precedent, as you frame it, is just waiting for the next president to use and abuse. So get rid of it. And saying that the law has no bearing on the legitimacy of an action unless more than half the population agrees, people of your mind on the issue, and that the action is immoral and illegal, does nothing short of nullifying the law. So, get rid of it.
In the mean time, let those who believe it really falls into the category of an emergency rest a little better knowing that someone, the president, is acting legally on their behalf to at least try to deal with it.
And personally I don’t think economic sanctions based on political disagreements and terrorism are reasonable or rational at all if they don’t bring the hostages home or get Russia to leave the Ukraine or whatever. But everyone’s doing it. So somebody likes the law. The border is an actual in-house emergency.
Oh, and by the way, I read it from a credible source (probably the NYT) that most if not all the migrants marching on the southern border are robots! I don’t remember exactly where I read it.
Climate change is unproven. The masses on the border are documented by every left wing TV station, newspaper and website there is. If Trump declared a national emergency to deal with climate change, I could see problems. Not because it would be illegal — unfortunately it would — but because AGW/cooling/catastrophic-changism (and the volcanoes erupting as a response to it; and the rapidly-changing magnetic north — which is also clearly happening as a result of increasing CO2 emissions; and the variance in emissions from the sun, currently cooling, is also a product of AGW) is all a scam. How crazy does a person have to be to believe the things the left is saying result from AGW? War in Syria? AGW.
Now however the southern border invasion (certainly also a result of AGW) is no longer a problem to be addressed — except by Mr. al Gore’s carbon credits and outlawing the use of fossil fuels. Because — Hitler!
But don’t give the left any ideas. I’m sure they’ll use the national emergency pathway when they get their next president in.
Funny you should say that…I seem to remember when things were inevitable back in mid-2016, that is exactly what the progressives were laying the ground work to do. So I did a little search on “Hillary Clinton to use emergency powers for climate change”:
Hillary Clinton’s climate army:
Hillary Clinton’s climate and energy policies, explained:
A World at War – We’re under attack from climate change—and our only hope is to mobilize like we did in WWII.:
I could go on but I think you get the idea. No serious person will doubt that the good Mrs. Clinton would have charged into whatever “emergency” she saw fit to see…and the Progressives would have cheered it on, the Nominal Right would have provided the appropriate behind the scenes encouragement, and the Conservatives would have made the usual ineffective, powerless, noise. This is nothing more than business as usual.
So,while somewhat entertaining, all of the “constitutional order matters,” “illegal power grab” (as if? Illegal? in DC? Don’t make me laugh), “preserving government” this, and “crossing the Rubicon” that, all in the name of “real principles” really is nothing more than a bunch of comment section masturbatory exhibitionism. Enjoy yourselves, guys (and girls).
I’m not saying I expect this to happen, but I hope that, whether Trump goes thru with this or not, the controversy will eventually lead to a long overdue revision of the emergency powers statutes. If he wanted, Trump could claim (in the event he chooses to invoke them) that his emergency actions were ultimately made necessary due to Obama’s emergency actions, and now that its been countered in kind it is time for bipartisan legislation to prevent future tit for tat.
I admit that I’m pragmatic enough in my Constitutional conservatism to consider that a win-win, but I’m not holding my breath.
That said, I will still vote for Trump over any Democrat who could win a national primary. We still get conservative jurists, and a president who will at least not be dedicated to the proposition that me and mine are racist, sexist, privileged pieces of excrement who must be made to suffer for our intransigence. I’ll just be (even) more pessimistic about the long-term state of my country.
I’m ok with the president having certain emergency powers. I just want him to only exercise those powers in actual emergencies – sudden, relatively unexpected events that require immediate action – like armed invasions, or volcanoes, or floods, or the Cleveland Browns making it to the SuperBowl. I don’t want him to exercise those powers just because he can’t get his way in a contentious policy debate that has gone on for years. I don’t think that’s asking for much.
Let me say the Seeds of Discord were already sown. When the Colts left Baltimore (in the middle of the night, in the back of a tractor-trailer like refugees) I wanted Art Modell to move in his Cleveland Browns. They would have made the just oh so perfect alliterative appellation for our new team. Instead we got a team named after a loud-mouthed carrion-eating bird made famous by a deceased depressive drug addict. Marvelous.
And that’s all I’ve got to say about that or the southern border!
Except that this proposed action is squarely inside laws passed by Congress. But for two separately enacted laws, from the 1970s and 1980s, and passage of a particular Fiscal Year 2019 appropriation, the President, any President, would have not power to do more than bluster.
Also, this:
Since the Left has already firmly established in the minds of their followers that Trump is literally Hitler, why should he be worried or why should any one of us on the Center Right worry about the notion he is a dictatorial tyrant?
I would say arguably, rather than squarely, as that interpretation relies on the president having the authority to define the phrase “national emergency” very broadly.
If the president can define “emergency” to include “serious problem,” or “long standing concern” or “major issue,” which are far more accurate descriptions of the border issue than “emergency,” and he can declare that emergency in response to Congress’ refusal to give him what he wants on that issue, that is an expansion of authority.
That interpretation effectively changes the meaning of the statute. Doesn’t have to actually be an emergency, just has to be a really big deal. Does that not concern you?
And again, as I said, even if it is technically legal, it’s a move that should cost him the job.
Funny. A single Federal judge can overturn laws that have been in existence forever. And that seems to be OK.
Over thirty years ago, I noticed potato chip bags were being printed with ENGLISH and SPANISH. I told Mr. C that was a sign we had lost control of our borders. “Press 1 for English” might become “Press 1 for Spanish” in the not too distant future, if we don’t stop the alien flow now. There is another caravan forming in Honduras as I write this; at last reports, some 15,000 people. There will be who knows how many women, children, and men sexually assaulted on their journey. The trash left in their wake—$1000 strollers, backpacks, clothing, used needles, human waste, will be left for others to deal with. The disruption caused by this large group in the towns they pass through—looting, broken windows, assaults, garbage—will be ignored by the MSM hyenas in our country. This group will overwhelm any resistance by police and military by their sheer numbers, unless met with lethal force. They will smash any barriers set in their path, women and children will be used as shields, AGAIN, and cities close to the border will have another logistical nightmare—food, water, shelter, medical help, etc. The legal wrangling aside, we have people in our country actively encouraging this lawlessness. My G-d, Democratic congress critters went to the border and walked some invaders across! Did they take them to their own homes? Of course not—they were released to wander where they will, don’t you think?
This needs to stop now, and President Trump has the tools he needs to do it. I would support the declaration of a national emergency, should he choose to do so.
Mr. Brown, you have grossly misread the statute.
To override the declaration of emergency requires only a “joint resolution.” That is not the same process as a Bill beoming a Law. It cannot be vetoed. It requires only a majority in each house.
I can’t agree with this logic. The passage of time for a minor matter, may allow it to get worse, raising it to an emergency. For a sort of analogy, consider an illness say cancer, that one ignores, it gets worse, and sooner or later, rises to the level that emergency action must be taken to preserve life. In a similar fashion, had we built the wall 30 years ago, it would be protecting us now, and we wouldn’t have this emergency, but we didn’t, so we do. Any way, since congress in its wisdom choose not to define a national emergency, it is exactly what the president says it is.
How will that be preserved when illegal aliens are voting themselves rights in the great state of California? Even the thin veneer of a republic that exists today evaporates when it’s known, throughout the world, that just get feet dry on US soil and not only are you granted access to the multi-trillion-dollar entitlement infrastructure, you can now vote yourself more of it, and will be encouraged, by Democrats, to do so.
This assumes that there’s hasn’t been decades of work trying to “motivate” the Mexican government. I guess there’s a lever for this, hidden somewhere, deep in the bowels of the State Department, that someone has yet to flip.
It’s patently ridiculous to think that political motivations would move a country so beholden to criminal interests, the narcotics trade, so let’s not wave The Easy Button in the air and assume we could fix things if we just did the one easy thing that apparently no one, ever, has tried before.
If we treat Mexico as an enemy state, that what motivations would be available to us, to use? Invasion?
Democrat Federal Judges do and that is acceptable.
But it hasn’t in the past for any president. You could theorize several scenarios, similar to immigration, that aren’t a classical definition of “emergency”, like a hurricane. A slow-moving virus, for example.
Just because immigration has been around forever, and its impacts aren’t felt at the individual citizen’s level, everywhere, at once, doesn’t mean it’s not an emergency.
I agree with many of the things said here,and recently spoken to on the Libertarian podcart, in terms of these sorts of powers being invoked in a future presidency, for things we do not want, so let’s not help support a precedent for them.
All well and good, but I think that cat’s already left the kitchen. Meaning they’ll do anything in order to further what they want, including having the highest court in the land re-write legislation in order to ensure a bill’s passage, Obamacare. All the tools of government are at their disposal; the govt gets bigger every year. Of course they’ll do whatever they can to increase power and control.
Recall Peter’s story of how absolutely everyone in the State Department and beyond warned President Reagan to abandon the “Tear down this wall” line and “evil empire” talk. Most career politicians and bureaucrats think diplomacy means playing along with dictators, obfuscating, and committing to compromise before positions are even laid out. Openly threatening adversaries which pretend to be friendly is the sort of blunt honesty and action that makes the State Department and typical politicians recoil in shock and fear.
In other words, plain threats against the Mexican government probably haven’t been tried. Or the threats have been pitiful compared to what Trump might consider.
By that logic, a medical ER should admit patients for non-immediate illnesses and injuries. Like the ER exists specifically for medical emergencies — often, as you say, because of letting treatable ailments worsen to a point of disaster — so a president’s emergency powers exists for emergencies only… and not for prevention of emergencies.
No. They wouldn’t be in the ER. They’d already have been admitted, with a lifelong illness, that’s now terminal.
I won’t talk about boiling a frog here, but there are emergencies that are progressive, continually worsening, yet still emergencies; so slow and yet observable that they aren’t obviously critical to life until a point just immediate to the point of no return. When the flood waters are rising, at what point do you abandon your home? At what point do you cry for help. If you wait too long, no amount of crying out can save you from the water that has risen to the ceiling, because by then there’s no way out. The windows are already sealed shut by the pressure of the water.
You’ve been told for years that the river is rising.
Should you wait until the last two inches from the ceiling? That last foot? When the water enters the living room? When you see the water hit your door step? It took two years for the water to reach your lawn and then another to reach your doorstep. At what point before the last inch of air space below your living room ceiling, do you call for help? At what point is it an emergency?
It’s ALL an emergency. Waiting only exacerbates it. When is it right to start laying out the sandbags and when do we start building the dike?
Wrong analogy. If there were a mob trying to break in and occupy the emergency room security would call it an emergency and seek support from the police. This is different than the routine misuse of emergency room medicine. The issue has been organically changed by festering inaction, bi partisan cowardice, Democrat politics, organizational support from our enemies, from open borders people, and by global perceptions. This is what marxists call the correlation of forces. When dysfunction, lethargy cowardice, and mild entropy suddenly lead to an emergency.