Abuse of the National Emergency and Balance of Power
It is time for Congress to consider its role in our tripartite government and recognize what it has given away.
January 25, 2019 at 10:50 AM
5 minute read
A national emergency is defined by the Merriam-Webster Dictionary as “a state of emergency resulting from a danger or threat of danger to a nation from foreign or domestic sources and usually declared to be in existence by governmental authority.”
It should go without saying that a national emergency should represent an actual emergency, something that is serious, unexpected, and perhaps dangerous, requiring immediate action to protect the country. Previous national emergencies have included declarations to block certain transactions with Iran following the taking of American hostages, to prevent the spread of weapons of mass destruction in the early 1990s, and following the 9/11 terrorist attacks.
At least post-Harry Truman, it has been readily understood and agreed that national emergencies should not be declared to circumvent political disputes that a president is losing. But now, we are faced with a president who does not appear to either understand or care about the checks and balances that are fundamental to American democracy and threatens a national emergency to end a dispute that he has not won politically.
It defies logic to consider how a situation that has remained largely unchanged for the entirety of the Trump presidency without an emergency being declared—namely that a dwindling number of people illegally enter the United States through the U.S.-Mexico border each year, many of whom are detained for an extended period of time—only now constitutes an emergency warranting such a declaration.
Like the previous weaponization of the filibuster, are national emergencies now to be considered fair use in the presidential political toolbox? We hope not. But these events convince us it is time for Congress to reconsider the powers it has delegated to the executive branch, especially powers available under a national emergency.
In addition to any implied powers the president may have under the Constitution in times of national emergency, there are more than 130 separate statutes that grant the president extraordinary powers in case of a national emergency. Under these statutes, which remain dormant until invoked, a president may, inter alia, impose martial law, take control of electronic communications, freeze Americans' bank accounts, deploy federal troops unilaterally and within U.S. borders, militarize public health service, dispose of infectious medical waste in the ocean, or take control of an airport.
The president's emergency powers may be accessed under the National Emergencies Act of 1976, which merely requires the president to identify a statute under which he is seeking emergency powers, declare a national emergency, which is not defined, and renew the state of emergency annually. Emergency powers are limited under the statute invoked, but the criteria for declaring a national emergency are not. Additionally, although the act provides that Congress can revoke the emergency by voting to do so, that resolution must be presented to the president, who is free to veto it. As such, a national emergency is impossible to remove without the agreement of the president.
There are 28 national emergencies currently in effect, the longest of which was declared by President Jimmy Carter and blocks property of the Iranian government from entering the country. The fact that there is little check on the use of emergency powers is worrying, especially if they may become political tools.
Even without an emergency, however, Congress appears to have almost completely ceded the power to use military force anywhere in the world. In 2001, just 17 days after 9/11, Congress passed the Authorization for Use of Military Force (2001 AUMF), which provides “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” When the 2001 AUMF was passed, it was determined that the 9/11 attacks had been orchestrated by Osama bin Laden and al-Qaida, operating out of Afghanistan. The U.S. began military operations against al-Qaida in Afghanistan on Oct. 7, 2001, which ultimately led to the death of bin Laden on May 2, 2011, in Pakistan.
But from 2001 to 2015, the 2001 AUMF was also used 37 times under both the Bush and Obama presidencies, some for operations whose connection to 9/11 appears dubious at best. The 2001 AUMF was used to justify military action in Iraq, the Philippines, Georgia, Yemen, Djibouti, Somalia, Turkey and Libya and new military operations against ISIS in Iran and Syria. This expansive view of the 2001 AUMF continued in the Trump administration, which saw new deployments in Niger, Chad, Nigeria and Lebanon. The Trump administration also determined it needed no new congressional authority to keep troops in Syria and Iraq, even launching cruise missiles into Syria. This end run around congressional authority has continued for more than 17 years.
It is time for Congress to consider its role in our tripartite government and recognize what it has given away. Especially in the case of powers expressly delegated to Congress in Article II, including appropriations and war powers, Congress should be cautious about ceding those powers elsewhere. Unwelcome as this current situation is, it provides Congress with a reason to institute periodic review of presidential actions taken in its lane. We hope that it does so.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllADVANCE Act Offers Conn. Opportunity to Enhance Carbon-Free Energy and Improve Reliability With Advanced Nuclear Technologies
Trending Stories
- 1Call for Nominations: Elite Trial Lawyers 2025
- 2Senate Judiciary Dems Release Report on Supreme Court Ethics
- 3Senate Confirms Last 2 of Biden's California Judicial Nominees
- 4Morrison & Foerster Doles Out Year-End and Special Bonuses, Raises Base Compensation for Associates
- 5Tom Girardi to Surrender to Federal Authorities on Jan. 7
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250