The History of National Emergencies

In light of Trump's recent declaration of a national emergency over the border wall, I believe it is important to understand the history of these declarations, as well as their implications. Most historians and constitutional law scholars agree that the president’s ability to declare a national emergency is based in the constitution, and this has been mostly upheld by the Supreme Court. It was not until the 1970s that the laws defining how presidents ought to declare emergencies were codified, when President Ford signed the National Emergencies Act, which requires the president to, “spell out the powers from specific laws that make it legal for him to declare a national state of emergency, and requires the House and the Senate to review such a declaration every six months to see if it’s still necessary” [1]. The emergency would lapse after a year, unless renewed, which they often are. Jimmy Carter was the first to issue a National Emergency after the passage of this act, though it was done before as well. The act was created as a way to restrict how presidents make use of their emergency powers. Under this act and the many other laws that determine presidential emergency and war powers, there are more than 100 special provisions open to the president, such as shutting down certain communications, freezing bank accounts, or deploying troops within the U.S. to subdue domestic unrest [2]. What was it Caesar said before crossing the Rubicon again?

Since the 1976 National Emergencies Act, Congress has never met once to determine whether or not a state of national emergency should end, and the United States has accumulated 31 ongoing national emergencies [3]. Unlike many other democracies, the United States constitution does not include any proscriptions for what should and should not be considered an emergency, or any stipulations over what powers declaring one gives the president. Most statutory powers used during a national emergency have never been used, but both the post-9/11 torture program and the establishment of internment camps for Japanese-Americans during World War II were under regimes of national emergency. Though the latter of these occurred before the 1976 law, it is important to note that although the methods by which a president must declare a national emergency have changed, the stipulations and powers he or she may draw upon have not. Under a national emergency or during war, the president could feasibly seize control of internet traffic, forcing pro-Trump articles to show up at the tops of searches, or even shut down the internet entirely [4]. An action of this level would undoubtedly cause a lawsuit from every internet-based corporation that operates in the United States, but the implementation of such a regime is not the only threat that attempting to create one causes. Rather, a president even attempting such an action would create yet another crack in the ever-degrading pillar that holds up American democracy.

One might argue that, because the United States already has 31 ongoing national emergencies, Trump’s declaration is nothing new. It will simply be a 32nd, and there is not so much to be worried about. I think about this in an altogether different way. The fact that we already have 31 ongoing national emergencies, one of which dates from as far back as the Carter presidency, is problem enough. It shows that there is a distinct problem in the way we treat the executive power in our country. The laws put in place after the Nixon presidency, meant to control the executive branch, do not seem to be functioning in the way they ought to, if they are functioning at all. The National Emergencies Act is part of this pattern, and is perhaps one of the greatest examples of how the balance of powers has failed to restrict the executive branch. The fact that Trump is part of a pattern here does not make the issue that his declaration causes better. It makes it worse.

But is it truly part of the pattern at all? 26 of the standing 31 national emergency declarations are specifically sanctions, either on people or nations, which focus on international issues rather than domestic ones [5]. Since the National Emergencies Act does require the president to announce publicly that they are modifying the powers they claim through these declarations, whether or not Congress meets to review them, one can imagine that suddenly tacking on, say, the movement of funds for the purpose of building a border wall to President Carter’s 1979 sanctions on Iran would raise some eyebrows. One national emergency deals specifically with export limits, to which I could easily ask the same question. Another deals with weapons proliferation, and unless Trump plans to convince us that his border wall could somehow aid in the nonproliferation of WMDs, I feel as though the same eyebrows would be raised. None of this, however, changes the fact that we, as a nation, ought to take this declaration of national emergency as a wake-up call, not just about this president but about how we deal with national emergencies in general. Appropriate oversight for presidential powers must be established if the United States is to remain a free and democratic nation. If we are to learn anything from this president, it should be that our institutions are never as safe as we believe them to be.