EMERGENCY POWERS

As justifications for taking emergency action without first receiving legislative authority, chief executives from different countries have relied on "reason of state" (raison d'état) and "prerogative." john locke, in the Second Treatise on Civil Government (1690), defined prerogative as the power to act "according to discretion for the common good, without the prescription of the law and sometimes even against it.…" More concise is the maxim salus populi suprema lex: the safety of the people is the supreme law.

The United States Constitution contains few provisions for emergency power. Congress has the power to meet emergencies by passing legislation. Under Article I, section 8, Congress may declare war and call forth the militia to suppress insurrections and to repel invasions. Article II authorizes the President to convene Congress "on extraordinary Occasions" for the purpose of enacting emergency legislation.

An exception to this statutory process is implied in the debates at the constitutional convention. The Framers recognized that the President might have to begin military operations for defensive purposes before Congress could act. When one of the delegates proposed that Congress be empowered to "make war," it was objected that legislative proceedings might at times be too slow for the safety of the country. "Declare" was substituted for "make," giving Congress the power to declare war but allowing the President discretionary authority "to repel sudden attacks."

For twentieth-century America, the concept of "defensive war" has expanded to include military actions far beyond the nation's borders. The long drawn-out war in Southeast Asia led to the war powers resolution of 1973, an effort to reconcile the war-making power of the President with the war-declaring power of Congress. The statute attempts to insure the "collective judgment" of both branches by requiring the President to consult with Congress "in every possible instance," to report to Congress within forty-eight hours after introducing forces into hostilities, and to withdraw those forces unless he receives congressional support within sixty or ninety days. Congress may at any time during this period pass a concurrent resolution (which is not subject to veto) directing the President to remove forces engaged in hostilities. The consultation and reporting provisions have had mixed results. The legislative veto mechanism in the War Powers Resolution was declared invalid in immigration and naturalization service v. chadha (1983).

Article I, section 9, permits the suspension of the writ of habeas corpus "in Cases of Rebellion or Invasion [when] the public Safety may require it." It has never been determined conclusively whether this power resides solely in Congress or is shared with the President. History supports the latter interpretation. In April 1861, while Congress was in recess, President abraham lincoln issued proclamations ordering a number of emergency actions, including the suspension of the writ of habeas corpus. Congress supported his initiatives, as did a sharply divided Supreme Court in the prize cases (1863).

Although Chief Justice roger b. taney had earlier placed the power of suspension exclusively with Congress, in Ex parte Merryman (1861), Lincoln ignored the court order and continued to exercise emergency powers. His attorney general, edward bates, argued that the President shared with Congress the power to suspend the writ of habeas corpus. In such cases as ex parte milligan (1866) and duncan v. kahanamoku (1946), the Supreme Court has held illegal the establishment of military tribunals to try civilians in areas where the civil courts are open. In these decisions, however, the Court took care to assert judicial control at the close of, rather than during, hostilities.

The President's emergency power has also grown because of authority delegated to him by Congress. These authorities would sometimes come to life whenever the President issued a proclamation declaring the nation to be in a state of emergency. A report issued by a Senate special committee in 1973 disclosed that four proclamations (issued by franklin d. roosevelt in 1933, harry s. truman in 1950, and richard m. nixon in 1970 and 1971) brought to life 470 provisions of federal law. Each statute conferred upon the President some facet of control over the lives and property of American citizens.

The national emergencies act of 1976 restricted the use of presidential emergency powers. The statute terminated emergency authorities two years from the date of the bill's enactment (September 14, 1976). For future national emergencies the President must publish a declaration in the Federal Register. Congress could terminate the national emergency by passing a concurrent resolution. After the Chadha decision, Congress substituted a joint resolution for the concurrent resolution. To prevent "emergencies" from lingering for decades without congressional attention or action, the 1976 statute contained an action-forcing mechanism. No later than six months after the President declares a national emergency, and at least every six months thereafter while the emergency continues, each House of Congress must meet to consider a vote to terminate the emergency.

The 1976 statute exempted certain provisions of law, including section 5(b) of the Trading With the Enemy Act, first enacted in 1917. This section had become a source of presidential authority in peacetime as well as wartime. President Roosevelt, for example, used section 5(b) in 1933 to declare a national emergency. Legislation in 1977 attempted to strengthen congressional control, allowing Congress to terminate an emergency by passing a concurrent resolution (a joint resolution would now be required). It was under the 1977 legislation that President Jimmy Carter seized Iranian assets in 1979, an action upheld by the Supreme Court two years later in dames & moore v. regan (1981).

Louis Fisher
(1986)

Bibliography

Rossiter, Clinton 1963 Constitutional Dictatorship: Crisis Government in the Modern Democracies. New York: Harcourt, Brace & world.

U.S. Congress 1976 The National Emergencies Act (Public Law 94–412). Source Book: Legislative History, Texts, and Other Documents. Senate Committee on Government Operations and Senate Special Committee on National Emergencies and Delegated Emergency Powers. 94th Congress, 2d session.