The Constitution does not expressly grant the President additional war powers or other powers in times of national emergency. However, many scholars think that the Framers implied these powers because the structural design of the Executive Branch enables it to act faster than the Legislative Branch. Nevertheless, because the Constitution remains silent on the issue, the Judiciary cannot grant these powers to the Executive Branch when it tries to wield them. The courts will only recognize a right of the Executive Branch to use emergency powers if Congress has granted such powers to the President.
- Gregory Korte, Justice Department: President Can't Use Emergency Powers in Secret, USA Today, Dec. 9, 2016.
- Gregory Korte, Special Report: America's Perpetual State of Emergency, USA Today, Oct. 22, 2014.
- Patrick Thronson, Toward Comprehensive Reform of America's Emergency Law Regime, 46 U. Mich. J.L. Reform 737 (2013).
- Stuart Taylor Jr., Emergency Powers Should Be Temporary, The Atlantic, Apr. 2006.
National Emergencies Act
In 1976, Congress enacted the National Emergencies Act, codified at 50 U.S.C. §§ 1601-51, in response to the continued existence of four declared national emergencies, the oldest of which had been in place for forty years. The Act did not revoke the outstanding emergency declarations, but instituted an expiration date on existing declared emergencies, barring further action. It also provided for a variety of termination methods, including the automatic termination of a national emergency upon its anniversary every year, if the President does not act to renew it.
For example, the state of emergency declared in Proclamation 7463 in response to the September 11 terrorist attacks was due to terminate most recently on September 14, 2016. However, President Obama continued the state of emergency past that date by following procedure established in the National Emergencies Act.
- The 1933 banking crisis, in which President Roosevelt renewed the national emergency declaration of the Act of March 9, 1933 via Executive Order 6102 and prohibited the hoarding of gold.
- The 1950 Korean War communism scare, in which President Truman declared a national emergency via Proclamation 2914.
- The 1970 postal workers strike, in which President Nixon declared a national emergency via Proclamation 3972 and threatened to delivery mail in New York using the National Guard.
- The 1971 inflation emergency, in which President Nixon declared a national emergency via Proclamation 4074 and imposed a temporary surcharge on imports to "strengthen the international economic position of the United States."
Executive Claims of Emergency Powers in History
A claim of emergency powers was at the center of President Lincoln's suspension of habeas corpus without Congressional approval in 1861. Lincoln claimed that the Confederate rebellion created an emergency that permitted him the extraordinary power of unilaterally suspending the writ. With Chief Justice Taney sitting as judge, the Federal District Court of Maryland struck down the suspension in Ex Parte Merryman,2 although Lincoln ignored the order.
President Roosevelt similarly invoked emergency powers when he issued Executive Order 9066 directing that all Japanese Americans residing on the West Coast be placed into internment camps during World War II. Because Congress had already declared war, the U.S. Supreme Court found Congress to have recognized an ongoing emergency. Consequently, by issuing the order, the President had acted in accordance with Congress's expressed intent, which was to respond to the emergency of war. For this reason, the U.S. Supreme Court upheld Executive Order 9066 in Korematsu v. United States 3 as a constitutional exercise of Presidential Commander in Chief and emergency powers.
Harry Truman declared the use of emergency powers in Executive Order 10340 when he seized private steel mills that failed to produce steel because of a labor strike in 1952. With the Korean War ongoing, Truman asserted that he could not wage war successfully if the economy failed to provide him with the material resources necessary to keep the troops well-equipped. The U.S. Supreme Court, however, rejected the argument in Youngstown Sheet & Tube Co. v. Sawyer,4 voting 6-3 that neither Commander in Chief powers nor any claimed emergency powers gave the President the authority to unilaterally seize private property without Congressional authority.
Last updated in July of 2017 by Stephanie Jurkowski.
Louis Fisher, Constitutional Conflicts between Congress and the President 249-272 (2007).