What Makes a National Emergency?

By Thomas S. Foley Institute; Service, Public | The Spokesman-Review (Spokane, WA), February 19, 2019 | Go to article overview

What Makes a National Emergency?


Thomas S. Foley Institute, Service, Public, The Spokesman-Review (Spokane, WA)


Ask the Foley institute

President Trump last week signed a bipartisan spending bill that included $1.3 billion for "construction of primary pedestrian fencing" along the southern border. This was less than the $5.7 billion that President Trump requested for wall construction, a key promise made during the campaign. After signing the bill, the President declared a national emergency, announcing he will use crisis authority to "reprogram" other funds to build a border wall.

What the Constitution says. Article I, Sec. 9, of the Constitution gives Congress authority over federal spending: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law ..."

However, courts have long-recognized that Presidents can take actions during emergencies even when specific statutory authority is lacking. President Lincoln, for example, relied upon emergency powers to blockade southern ports and do other things during the Civil War.

Use of the emergency power, however, is limited. In 1952, the Supreme Court prevented President Truman from seizing control of U.S. steel mills to prevent a labor strike during the Korean War. The President's actions would have contradicted the Taft-Hartley Labor Relations Act, passed in 1947 over Truman's veto. The opinion by Justice Robert H. Jackson in that case is today used by most legal scholars to assess executive power. Jackson said presidential authority must be analyzed relative to what Congress does. When the president acts in defiance of Congress, as opposed to when he has been given express authority by Congress or Congress has been silent, then his authority is at its "lowest ebb."

Since Congress already acted on President Trump's request for wall funding and prohibited the use of other funds for wall construction, his authority to act is at a low ebb under Justice Jackson's analysis. However, since President Trump's emergency proclamation relies mostly on statutory authority, it is likely that any legal challenges will not be decided on constitutional grounds.

What statutes say. The National Emergencies Act (NEA) of 1976, gives the president broad power to proclaim national emergencies. The Act is silent regarding what constitutes an "emergency" but it specifically provided Congress could terminate emergency declarations by the President.

The NEA originally arose out of Watergate concerns of presidential overreaching, and was introduced in the Senate by Senator Frank Church of Idaho. As enacted in 1976, it permitted l termination of presidential emergencies through a concurrent resolution that required only a simple majority vote from both houses of Congress. …

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