What Is a National Emergency?

US National Guard units patrolling outside the main New York Post Office at Cadman Plaza. They have been ordered there by President Nixon as a result of a strike by Post Office workers
US National Guard units patrolling outside the main New York Post Office at Cadman Plaza. They have been ordered there by President Nixon as a result of a strike by Post Office workers.

Leslie Leon/Keystone/Getty Images

In United States government, a national emergency is any extraordinary situation deemed by the President of the United States to threaten the health or safety of the citizens and which cannot be adequately addressed by the application of other laws or executive actions.

Exactly what situations do or do not constitute a state of emergency came into question in January 2019, when President Donald Trump stated that he might declare a national emergency in order to divert existing Department of Defense funds for the completion of a concrete wall (or steel barrier) intended to prevent illegal immigration along the entire southern U.S. border—a maneuver used by President Ronald Reagan in 1982 to boost construction of military facilities.

Key Takeaways

  • A national emergency is any extraordinary situation declared by the president as threatening American citizens and not resolvable by other laws.
  • Under the National Emergencies Act of 1976, a declaration of national emergency temporarily grants the president at least 140 special powers.
  • The reasons for declaring a national emergency and the provisions to be applied during that emergency are solely and entirely up to the president.

Under the National Emergencies Act (NEA), more than 100 special powers are granted to the president under a declared national emergency. When and why to declare a national emergency is entirely at the president’s discretion.

Background and Legal Precedence

While the U.S. Constitution grants Congress a few limited emergency powers—such as the power to suspend the right to writs of habeas corpus—it grants the president no such emergency powers. However, many legal scholars have confirmed that the Constitution gives presidents implied emergency powers by making them the commander in chief of the armed forces and by granting them broad, largely undefined “executive power.” Many such executive powers are applied by presidents through the issuance of legally-binding executive orders and proclamations.

The first such emergency proclamation was issued by President Woodrow Wilson on February 5, 1917, in response to a lack of U.S. cargo ships needed to carry exported products to allied nations during World War I. The provisions of the proclamation were declared to be within the framework of the earlier law creating the United States Shipping Board.

Prior to the presidency of Franklin D. Roosevelt, presidents declared numerous emergencies to deal with situations like the hoarding of gold, the Korean War, a postal workers strike, and out-of-control economic inflation. In 1933, Roosevelt, in response to the Great Depression, began the ongoing trend of presidents declaring national emergencies of unlimited scope and duration, and without congressional oversight or precedent in existing laws.

Eventually, in 1976, Congress passed the National Emergencies Act, which was intended to limit the scope and number of executive emergency powers a president could invoke by declaring an “emergency” and to provide certain checks and balances on the emergency powers of the president.

National Emergencies Act of 1976

Under the National Emergencies Act, presidents are required to identify the specific powers and provisions to be activated by the declaration of emergency and to renew the declaration annually. While the law grants the president at least 136 distinct emergency powers, only 13 of them require a separate declaration by Congress.

During declared national emergencies, the president can—without the approval of Congress—freeze the bank accounts of Americans, shut down most types of electronic communications inside the United States, and ground all non-military aircraft.

Procedure for Declaring Emergencies

Under the National Emergencies Act, presidents activate their emergency powers by issuing a public declaration of national emergency. The declaration must specifically list and notify Congress of the powers to be utilized during the duration of the emergency.

Presidents may terminate declared emergencies at any time or continue to renew them annually with the approval of Congress. Since 1985, Congress has been allowed to renew an emergency declaration by the passage of a joint resolution rather than by separate resolutions passed by the House and Senate.

The law also requires the president and the Cabinet-level executive agencies to keep records of all executive orders and regulations issued due to the emergency and to regularly report to Congress the costs of enforcing those provisions.

Emergency Powers Under the National Emergencies Act

Among the nearly 140 national emergency powers Congress has delegated to the president, some are particularly dramatic. In 1969, President Nixon suspended all laws regulating chemical and biological weapons on humans. In 1977, President Ford allowed states to suspend key provisions of the Clean Air Act. And in 1982, President Reagan authorized the use of existing Defense Department funds for emergency military construction.

More recently, President George W. Bush declared a national emergency days after the September 11, 2001 terrorist attacks that suspended several laws, including all laws limiting the size of the military. In 2009, President Obama declared a national emergency to help hospitals and local governments deal with the swine flu outbreak.

Notable Ongoing National Emergencies

As of January 2019, a total of 31 national emergencies dating back to 1979 remained in effect. A few of the more notable of these include:

  • Preventing the proliferation of Weapons of Mass Destruction (Nov.1994)
  • Banning financial dealings with terrorists who threaten the Middle East peace process (Jan. 1995)
  • Provisions arising from the terrorist attacks of September 11, 2001 (Sept. 2001)
  • Freezing the funds and property of persons who commit, threaten to commit, or support terrorism (Sept. 2001)
  • Continuing restrictions with respect to North Korea and North Korean nationals (June 2008)
  • Freezing the property of multinational organized criminal organizations (July 2011)
  • Freezing the property of certain persons involved in cyber-enabled crime (April 2015)

During his first two years in office (2017 and 2018), President Trump issued three national emergency declarations, most notably, a controversial national emergency intended to punish foreign nationals found to have interfered in or otherwise attempted to influence American elections. Accused of collusion with Russian agents during the 2016 presidential election, Trump’s declaration drew bipartisan criticism for being too weak. All three national emergency declarations issued by President Trump as of January 2019 include:

  • Blocking access to the property of persons involved in serious human rights abuse or corruption (Dec. 2017)
  • Imposing sanctions in the event of foreign interference in a United States election (Sept. 2018)
  • Blocking access to the property of persons contributing to the situation in Nicaragua (Nov. 2018)

While most national emergencies have been declared in response to foreign affairs, no law prevents presidents from declaring them to deal with a domestic issue, as President Obama did in 2009 to deal with the swine flu. Two other laws—the Stafford Act and the Public Health Services Act—are intended to provide federal response to state and local disasters, and public health emergencies. In addition, all 50 states have laws empowering the governors to declare emergencies within their states and to ask the President of the United States for federal assistance.

Sources and Further Reference