The Legal Status of Presidential Emergency Powers
In 1976, Congress passed the National Emergencies Act (50 U.S.C. §§ 1601-1651). It contains the following simple and straightforward language giving the President power to declare a national emergency:
“With respect to acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency”
The Act also provides two ways to terminate an emergency declaration:
“Any national emergency declared by the President in accordance with this subchapter shall terminate if—
(1) there is enacted into law a joint resolution terminating the emergency; or
(2) the President issues a proclamation terminating the emergency.”
So, it’s relatively simple, the President declares an emergency, if the President says it’s over it’s over, or if Congress passes a law signed by the President that says it’s over, it’s over.[1] Like any other law passed by Congress, the President can veto a congressional resolution ending the emergency he declared and the emergency stays in effect. [2]
A presidential declaration of an emergency triggers possible presidential use of additional powers set forth in over 100 other laws, as long as the president tells Congress which powers he’s going to use.
How Presidents Have Used Emergency Declarations Since 1976
Since 1976, presidents have issued 60 emergency orders, over half remain in effect, including the very first issued by Jimmy Carter on November 14, 1979. For the first 59 of the orders, there has never been a congressional resolution to terminate the emergency.
The 59 unchallenged “emergencies” have covered many subjects, including Iran, Nicaragua, South Africa, Libya, Panama, Iraq, Bosnia, Herzegovina, Serbia, Cuba, Burma, Sudan, Montenegro, Sierra Leone, the Western Balkans, Zimbabwe, Syria, Côte d’Ivoire, Belarus, the Congo, Lebanon, North Korea, Somalia, Yemen, Ukraine, the Central African Republic, Venezuela, the Russian Federation and Burundi.
Of the unchallenged 59, there’s three on the list that might look and sound like emergencies to most Americans: emergencies declared in response to the Iranian hostage crisis in 1979[3], Hurricane Katrina and the terror attacks of 9/11. The other 56 are largely “emergencies” declared in the pursuit of some foreign policy goal.
The 60th National Emergency
The 60th emergency, and the first to be challenged, involves the Southern Border of the United States, and was declared by President Trump on February 15, 2019. The proclamation is worth reading.
In response to President Trump’s declaration outlining the dangers to our country arising from a porous southern border and outlining the laws that allow him to address an actual emergency that impacts the lives and security of American citizens, the Congress, in one day less than a month after the President’s Proclamation adopted the following: 
Relating to a national emergency declared by the President on February 15, 2019.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That, pursuant to section 202 of the National Emergencies Act (50 U.S.C. 1622), the national emergency declared by the finding of the President on February 15, 2019, in Proclamation 9844 (84 Fed. Reg. 4949) is hereby terminated.
Twelve Senate Republicans: There Is No Emergency at US Southern Border
Succinctly, the Members of Congress voting for the Resolution said this: “the national emergency … is hereby terminated”
There were twelve Republican Senators who voted to terminate the emergency. They are as follows:
- Lamar Alexander of Tennessee
- Roy Blunt of Missouri
- Susan Collins of Maine
- Mike Lee of Utah
- Jerry Moran of Kansas
- Lisa Murkowski of Alaska
- Rand Paul of Kentucky
- Rob Portman of Ohio
- Mitt Romney of Utah
- Marco Rubio of Florida
- Pat Toomey of Pennsylvania
- Roger Wicker of Mississippi
Each Senator made various statements regarding presidential overreach, protecting Congress’ power of the purse, a view that the President’s action was unconstitutional, protection of the republic, possible precedent for future presidents to declare other emergencies, and consistency with how they treated President Obama[4]
Each argument is easily refuted. President Trump’s action was clearly constitutional. He acted with authority delegated plainly by Congress to declare the emergency. Congress had further delegated authority to utilize previously appropriated funds to address the emergency.
Despite every Republican Senator above making a statement that each agreed with President Trump that there was a need to secure the southern border, all voted that “the national emergency … is hereby terminated”
Many of the Senators received praise for standing up to the president or courageously defending separation of powers and other high minded rationales. In the end, these Senators, failed the American people, in voting to terminate, they voted to terminate the only presidential declaration of emergency out of 60 that directly addressed the safety and security of the American people.
Those 12 Republican Senators gave neither cogent nor valid reasons. Read the Resolution they voted for, they simply said: “There’s no emergency”.
President Trump vetoed the Resolution on March 15, 2019. That leaves the declaration intact with little likelihood that Congress will override. Then, as always, it will be challenged in the courts. With the best of luck, it will be resolved by judges who read the law and not judges wanting to impose their own will.
[1] The Act also provides that unless the President renews an emergency 90 days before it’s a year old, it also expires.
[2] Congress can “override” the veto with 2/3 vote of both the House and Senate.
[3] That was the first emergency. It was declared by President Carter, and it remains in effect today.
[4] President Obama declared 11 “emergencies”, none were challenged.
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