Going all the way back to at least Abraham Lincoln, Presidents have claimed special powers to deal with emergencies. The questions we have here at The Constitution Study are who, if anyone, has the authority to enact these emergency powers and under what situations can they do so?
Who Can Enact Emergency Powers
First of all, the word “emergency” does not exist in the Constitution. The Constitution does, however, recognize situations where the normal rules may have to be suspended. Where do we find these?
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Article I, Section 8, Clause 15
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.
Article I, Section 9, Clause 2
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment III
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;
Amendment V
If you are a Constitutional scholar you will recognize that the first two places we see emergency powers are both in Article I, which is targeted at Congress. Congress can call forth the militia and suspend habeas corpus to suppress insurrection and repel invasion. Further, they can suspend habeas corpus if public safety requires it. Amendment III states that in time of war, soldiers can be quartered in private homes only by law, which is created by Congress. Amendment V includes an exception to the requirement for a grand jury, but only for the military and only in a time of war or public danger. None of these clauses in the Constitution authorize the President to exercise emergency powers, nor is he authorized to declare for himself a situation where he can do so.
The question then becomes: What powers are invested in the President to deal with emergency situations?
[The President] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.Article II, Section 2, Clause 1
He can issue reprieves and pardons to those convicted of criminal offenses, but only after the fact. In other words, while he cannot order someone to break the law, if someone is convicted of a crime and in the President’s opinion the emergency situation warranted it, he can remove the punishment via pardon. It is important though, to notice a President can only pardon someone after they are convicted. Contrary to what some movies might imply, the President cannot issue a blanket pardon for future crimes.
Can Congress legislate authority for the President to declare an emergency? Congress has no authority under the Constitution to delegate its powers to the President. Therefore, any legislation enabling the President to act must be limited to powers he has been delegated by the Constitution. As we’ll see shortly, there is only one situation where Congress can legislate power for the President to wield.
When Can Emergency Powers be Enacted?
Look back at the clauses we’ve quoted and you’ll notice specific times when these emergency powers can be enacted. War, insurrection, and rebellion are the primary situations where the normal rules can be suspended. Some legal protections, like habeas corpus and grand juries, can be suspended to protect public safety, but these are limited to courtrooms and not the streets of the nation. Should the nation be facing insurrection or rebellion, Congress can call up the militia, which would then be under the direction of the President as Commander-in-Chief, but the rules of engagement and the limits of their power are controlled by Congress.
Congress can, within their legislation, establish situations and processes where said legislation may be suspended, but only to legislation they are authorized to enact by the Constitution in the first place. For example, they may enact legislation that allows for the suspension of commerce with foreign nations, suspend patent protections, and even suspend federal courts other than the supreme Court, but they are limited to what they are authorized to do by the Constitution. Meaning they cannot suspend freedom of speech or press, grand juries for anyone outside of the military, or the requirements for valid warrants.
National Emergencies Act
I’ve seen many people claim that President Trump has the authority to declare national emergencies under the National Emergencies Act, but there are two very important things to be noted about that. First, the National Emergencies Act does not authorize the President to declare emergencies, it establishes a framework for review, recording, and termination of said declarations.
When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.
Second, Congress has no authority to grant powers to any other branch of government the Constitution does not authorize.
It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
Summary
Neither the President nor Congress have the authority to declare a blanket “National Emergency”. Congress cannot delegate to the Presidency the authority to suspend the constitutional process or execute a power not specifically delegated to him by said Constitution. The federal government does not have the authority to suspend any constitutional protection or process either, except those we’ve specifically shown above or by constitutional amendment ratified by the states.
Since we have spent the better part of the last century and a half ignoring more and more of the Constitution, I’m not surprised at the fight currently taking place or the general misunderstanding around the declaration of a national emergency. This is why it is so important that the American people read and study for themselves the supreme law of the land and learn to hold those we elect to represent us accountable to their oath to support it. Otherwise, the only thing between us being a constitutional republic and a dictatorship is the dysfunction in Washington.
