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When Does the U.S. Declare a National Emergency and Why?

By Stephanie Rabiner, Esq. | Updated by Melanie Rauch, JD | Last updated on

The United States, through its Constitution, entrusts Congress with significant powers, including the authority to declare war and oversee appropriations. However, in 1976 Congress felt that the modern world, with its rapid changes and unforeseen crises, necessitated more agile responses than the legislative process typically allows. This led to the establishment of the National Emergencies Act, a pivotal statute that codified the process for declaring national emergencies and the powers that such a declaration can activate.

Presidential Powers and Congressional Oversight

The Act allows the President to declare a national emergency, granting access to special powers contained in over 100 federal statutes. For instance, during the COVID-19 pandemic, President Donald Trump and Joe Biden invoked the Public Health Service to declare a public health emergency, unleashing significant federal resources and authority to combat the virus.

Emergency Declarations and Their Implications

The declaration of a national emergency, typically issued through an executive order and published in the Federal Register, activates emergency authorities that can significantly expand presidential power. These authorities range from sanctions and export controls to mobilization of the armed forces and reallocation of budgetary appropriations for emergency responses.

One example of using emergency powers for domestic policy was President Trump’s declaration to divert funds for the construction of a border wall along the southern border with Mexico. This action, grounded in the President’s emergency authority, sparked a heated debate in Washington, leading the Democratic-led House of Representatives and, to a lesser extent, the Senate to challenge the declaration. However, Trump vetoed the congressional resolution to terminate his emergency declaration, illustrating the tension that can sometimes now arise between the executive and legislative branches of government over emergency powers.

The Role of Congress

Congress plays a crucial role in this balance of powers, not only through the initial granting of emergency powers but also by retaining the capacity to terminate a declared national emergency through a joint resolution — a power that underscores the importance of congressional oversight. Moreover, the Brennan Center and Congressional Research Service have highlighted the broad scope of these emergency powers, emphasizing the need for regular congressional review to ensure they are used appropriately and proportionately.

Historical Context

The use of emergency powers has been a feature of the American presidency since George Washington’s administration. The Korean War, the terrorist attacks on September 11, and various international crises, such as those involving Iran, have all prompted presidents to declare national emergencies pursuant to federal law and the International Emergency Economic Powers Act (IEEPA).

Significantly, the response to the coronavirus disease under Presidents Trump and Biden showcased the federal government’s reliance on emergency declarations to manage public health emergencies The Health and Human Services Department (HHS), under the authority of the Public Health Service Act, played a pivotal role in the national response, demonstrating the interconnectedness of federal, state, and local governments in managing emergencies.

The declaration of national emergencies in the United States is a nuanced process, intricately linked with the nation’s constitutional framework and the complex interplay between the executive powers and houses of Congress. Whether responding to natural disasters, public health crises, national security threats, or economic turbulence, the mechanism of declaring a national emergency is a critical tool in the American governmental arsenal. It allows for rapid mobilization of resources and the exercise of special powers to address extraordinary situations. It also highlights the eternal vigilance required to balance these extraordinary powers with democratic principles, congressional oversight, and the safeguarding of civil liberties.

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