On February 15, United States President, Donald Trump, declared a “National Emergency” that pertained to the Southern Border of the United States. But, from a legal perspective, what does that mean? What source of law allows for our executive branch to implement such a drastic measure?

What Is the “National Emergency Act?”

Under the U.S. Constitution, the Executive Branch has the enumerated power to utilize the “armed forces and constructions powers.”

The ‘National Emergencies Act‘ (H.R. 3884) was enacted by the 94th Session of Congress “to terminate certain authorities with respect to national emergencies still in effect, and to provide for orderly implementation and termination of future national emergencies.” (Emphasis added).

Signed by President Gerald Ford on September 14, 1976, the the Act empowers the President to activate special powers during a crisis, but imposes certain procedural formalities when invoking such powers.

This article will explore the latter part of the introduction of the Act as well as the implementation and termination of future national emergencies.

Why Is Such An Act Necessary?

The basic principle and necessity of this law is simple to see and to understand, Congress saw and understood that the President would need the ability and the authority to act accordingly in situations wherein a national emergency exists so that the emergency can be resolved quickly and effectively.

Title II of the Act sets forth the parameters wherein the President may declare a national emergency. Sec. 201 (a) states “…the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.”

A very interesting point, and one that leaves much room for debate and discussion, is that the law itself does not specifically define what criteria need to be met for a situation to be labeled a “national emergency,” but the Act does formalize certain procedures that the President must follow when declaring the emergency, as well as checks that Congress could utilize to oversee the President’s declaration of the emergency.

What “Checks” Are In Play?

Even though the President has the ability to declare a national emergency, Congress still has powerful checks on that declaration.

The Congressional Veto Power

First, the President’s declaration must survive a Congressional challenge if Congress passes a resolution terminating the declaration.

If a resolution passes, then that resolution is sent to the President, wherein he will either sign the resolution or veto it.

If the President vetoes that resolution, Congress can override the veto with a two-thirds (2/3) majority of the Congress.

If Congress cannot must two-thirds, then the Presidential veto overrides the Congressional resolution that terminates the national emergency declaration.

The “National Emergency” Has An Expiration Date

Second, the declaration does have an expiration date when the President initially declares the national emergency.

When the deadline for that declaration arrives, the President has two options: first, is to renew the declaration and have the declaration tested by Congress again.

From there, Congress can then either allow the declaration to go into effect or pass a resolution that terminates the declaration.

Again, if the resolution is passed, the President can veto it, which then forces Congress to secure two-thirds majority to survive the veto.

Second, the President can declare that the national emergency is over and not renew the declaration.

Congressional Exemptions

Congress has enacted different versions of the national emergency act, and Congress has exempted certain emergency authorities from the national emergency act.

Such exempted authorities are:

  1. Allowing exemptions of national defense contracts from competitive bidding;
  2. Exemptions regulating the promotion, retirement and separation of military officers;
  3. Exemption to regulating transactions in foreign gold and silver;
  4. Exemption to regulating federal property purchases and contracts;
  5. Exemption limiting the assignment of claims against the federal government; and
  6. Exemption to enabling the President to make national defense contracts outside of otherwise applicable rules (catch-all).

While this list of exemptions is not exhaustive, Congress has continued to revise these and will continue to do so as it sees fit.

Our Recent National Emergency Under President Trump

Since 1976, the sitting president has declared a total of 49 national emergencies at the time.

As of March 31, 2019, President Trump has declared four national emergencies. Almost every previous president since the National Emergency Act was signed in 1976 has declared numerous national emergencies:

  1. President Jimmy Carter declared two emergencies, one still in effect;
  2. President Ronald Reagan declared six emergencies;
  3. President H.W. Bush declared five emergencies;
  4. President Bill Clinton declared 17 emergencies, six still in effect;
  5. President George W. Bush declared 13 emergencies, 11 still in effect; and
  6. President Barack Obama declared 12 emergencies, 10 still in effect, one has not been terminated or extended.

Clearly, President Trump’s latest declared national emergency has already been challenged by Congress, and survived via his veto power.

Where Do We Go From Here?

As long as Congress continues to not more clearly define the parameters of what constitutes a national emergency, presidents will continue to utilize this executive ability, and will continue to bypass Congress when they feel that Congress is not efficient in dealing with situations that arise to the level of becoming national emergencies.