Today in 1976 – The National Emergencies Act reigns in Presidential powers

September 14, 2012

Today in Legal HistoryTuesday marked the 11 year anniversary of the September 11 attacks.

Although he commemorated the date with various other observances more personal and political in nature, President Barack Obama also marked the anniversary with something a bit more legal.

Namely, renewing the national state of emergency that began on September 14, 2001, when George W. Bush issued the original proclamation.

Those of you who have read either of the proclamations may have noticed that both were made “pursuant to the National Emergencies Act.”

Coincidentally, the National Emergencies Act was passed exactly 25 years before President Bush’s original proclamation – on September 14, 1976.

“Pursuant to the National Emergencies Act” may be a bit confusing, since Presidents have been declaring states of emergency for hundreds of years.

They did this by invoking the Preamble of the U.S. Constitution’s requirement that the government “provide for the common defence [sic]” and “general welfare” (albeit through heavy implication), so why are proclamations of national emergencies now “pursuant to the National Emergencies Act?”

Because the Act is now the highest authority on regulating presidential national emergency proclamations.

The Act does this in several ways.

First, it imposes a strict two year time limit on the duration of the national emergency.

In addition, every six months during the effect of a declared national emergency, the Act requires “each House of Congress…to consider a vote on a concurrent resolution to determine whether that emergency shall be terminated.”

The President is also required by the Act to report “expenditures incurred by the United States Government” that are “directly attributable to the exercise of powers and authorities conferred by such declaration.”

Lastly, and perhaps, most importantly, the Act forbids the President from invoking any statutory powers made available in the event of an emergency unless the President “specifies the provisions of law under which he proposes that he, or other officers will act”

This last bit provides an explanation as to Congress’ original reason for passing the Act.

In the 1970s, after Nixon’s Watergate scandal, Congress reviewed the powers of the President.

They found that several national emergencies were still in effect, some dating back several decades.

Because there was no express limit on which powers the President may invoke during a national emergency, the Executive was free during this time to invoke any number of the 470 provisions of federal law activated during a national emergency, including the ability to seize property, institute martial law, and restrict travel at any time and for any reason.

And there was technically nothing anyone besides the President could do about it.

After that rather shocking revelation, it’s no surprise that Congress acted decisively to ensure that it never happen again.

Thanks to the National Emergencies Act, we know exactly what powers the President is planning on invoking during a specific national emergency, and we know that there is a definite end to such a period.

So, while many civil libertarians may be wary about the declarations of national emergencies as a power grab by the government, the National Emergencies Act should help allay much of those fears.

True, the Act doesn’t stop the President from invoking the authority to impose martial law during a national emergency, but at least it forces him to let everyone know what he’s planning ahead of time.