While perusing the news this morning, I saw a breakin announcement that Biden has “signed legislation to end the COVID national emergency”. I found that statement fascinating and it inspired me to do more research on the “national emergency” precedent in the country.
Can the President actually declare a national emergency? Does the Constitution give him that power? How is that connected to Congress?
The Constitutional Context
The founders were pretty wary of government’s tendency to use emergencies and wars to expand their power and effectively absolve themselves of any Constitutional limitations. Their suspicion of such abuse of power was so strong that they took a different approach to the Constitution than most countries before or since. They provided no provision in the Constitution for the Constitution to be “put on hold”. In other words, there is no “emergency provision” in the Constitution. This lack of a way to suspend the Constitution was very intentional because governments are prone to creating emergencies in order to give themselves arbitrary and unlimited power by being able to justify suspending the limitations on their power.
Since the framers were suspect of this type of abuse, they only gave Congress one “out”. In Article 1, Section 9, the Constitution says:
"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
For more on this “out”, read my article on national emergencies.
According to the Cornell Law School Legal Information Center:
“Only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative actions or through an express delegation to the Executive. The Executive does not have the independent authority to suspend the writ.”
So, even the one Constitutional provision that can be suspended, can only be suspended by Congress, not the executive.
While the Constitution only gives Congress the ability to suspend one small provision of the Constitution during specific emergencies, since the early twentieth century, Presidents have decided to take this emergency power for themselves, and the other branches have acquiesced.
Research shows that when the executive branch has popular support from the citizenry, the other branches of government are more deferential to the executive (Dragu and Polborn, 2013; Hardin, 2004). “The citizens’ demand for more security not only provides democratic legitimacy to executive discretionary powers but also ensures that the executive uses its discretion efficiently”(2013, 512).
So, during a time of crisis, the executive begins to embrace tyrannical authoritarian powers and the other two branches either stand by and let it happen or participate in giving that power to the executive. A huge reason for this deference?
The immense support that the executive begins to have from the citizenry during a crisis. The legislative branches don’t want to irritate their constituents by countering the power of the executive and “the judicial branch is concerned about legitimacy, therefore, the overall mood of the citizenry could be one of the environmental factors that contributes to the court’s willingness to rule in favor of security at the expense of civil liberties after a war or national tragedy (Clark, 2009; Ginn, Searles and Jones, 2014).”
The first such instance of the executive “declaring” a national emergency was on February 5, 1917 when President Woodrow Wilson issued an emergency proclamation in response to the “in response to a lack of U.S. cargo ships needed to carry exported products to allied nations during World War I.” (thoughtco.com)
Subsequent emergency proclamations “began the ongoing trend of presidents declaring national emergencies of unlimited scope and duration, and without congressional oversight or precedent in existing laws.” This led to presidents possessing unlimited and arbitrary “emergency” powers.
The founders, with their keen foresight, set up the government with the hope that “ambition will be made to counteract ambition“. Thus, it should come as no surprise that Congress–upon seeing the increasing power of the executive as a result of this ability to declare, via proclamation, a national emergency–should push back in response.
Congress passed the National Emergencies Act of 1976, which was meant to clearly define and thus confine the emergencies powers of the President. In other words, the power would technically not be arbitrary since it would come from Congress (though many could argue that Congress does not have the power to bequeath on the President such emergency powers since they themselves were not granted such power by the Constitution).
Here’s an enlightening quote from one of the hearings leading up to the law’s passage:
“The appeal … that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, they made no express provision for exercise of extraordinary authority because of a crisis. I do not think we rightfully may so amend their work…“CRS Reports
The irony though of this supposed “limiting” law, is that affords the president 150 emergency powers and he may declare a national emergency whenever he so chooses, and once declared, he “has these 150 powers”. For context, one of these 150 powers is the following:
"During declared national emergencies, the president can—without the approval of Congress—freeze the bank accounts of Americans, shut down most types of electronic communications inside the United States, and ground all non-military aircraft."
The powers Congress is willing to “give” to the president in a time of emergency are frightening at best, and tyrannical at worst. Click here for a comprehensive list of these emergency powers.
The Constitution never afforded the president any “emergency powers” and the “emergency powers” the Constitution did specify were limited to Congress, with reason. The founders did not want a King. The state of the nation is not and never should be based on the arbitrary whim of a single government official.
So, when I read the news story that Biden has essentially decided that the U.S. is no longer in a state of emergency due to COVID, my first instinct was to groan, knowing that so many Americans will see that article and assume that the president has the power to arbitrarily declare whether or not we’re in an emergency, as if we do have a King.
It’s time we stop assuming we have a King, and start realizing that we’re the government’s employers, the ones in charge and we gave the government a specific job description that gives our government no provision for arbitrary unconfined emergency powers.
The Liberty Belle