The United States: Presidential Powers and Declarations of Emergency

Chapter 8
The United States: Presidential Powers and Declarations of Emergency

Despite its origins in the revolutionary overthrow of British tyranny, and the later adoption of a Bill of Rights that seeks to defend core legal and democratic rights against arbitrary government power, the United States has also increasingly seen an extraordinary expansion of executive powers. Both by pseudo-legal arguments and surreptitious actions, successive administrations have asserted emergency or emergency-type powers that are potentially dictatorial.

The Constitution has been wilfully interpreted in many different ways to insist that the president and the executive have emergency powers that do not need to be given by Congress, or even later approved by it. There have been actions and orders of past presidents that have been heavily criticised as being unconstitutional, yet their examples have been followed and extended by subsequent administrations, including that of Barack Obama.

According to a Congressional Research Service report, National Emergency Powers, issued on 18 September 2001, there are limits and restraints upon the president in his exercise of emergency powers. With the exception of the habeas corpus clause, the Constitution makes no allowance for the suspension of any of its provisions during a national emergency. Nonetheless, presidents have extensive emergency powers:

Federal law provides a variety of powers for the President to use in response to crisis, exigency, or emergency circumstances threatening the nation. Moreover, they are not limited to military or war situations. Some of these authorities, deriving from the Constitution or statutory law, are continuously available to the President with little or no qualification. Others – statutory delegations from Congress – exist on a standby basis and remain dormant until the President formally declares a national emergency. These delegations or grants of power authorize the President to meet the problems of governing effectively in times of crisis. Under the powers delegated by such statutes, the President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens. (Congressional Research Service 2001: 1)

The Congressional Research Service report also pointed to political factors that had led to perceived limitations on presidential powers:

Disputes over the constitutionality or legality of the exercise of emergency powers are judicially reviewable. Indeed, both the judiciary and Congress, as co-equal branches, can restrain the executive regarding emergency powers. So can public opinion. Furthermore, since 1976, the President has been subject to certain procedural formalities in utilizing some statutorily delegated emergency authority. The National Emergencies Act (50 U.S.C. 1601–1651) eliminated or modified some statutory grants of emergency authority, required the President to declare formally the existence of a national emergency and to specify what statutory authority, activated by the declaration, would be used, and provided Congress a means to countermand the President’s declaration and the activated authority being sought. (Congressional Research Service 2001: i)

A closer examination reveals that these congressional oversights, along with scrutiny by the courts, have been incapable of providing any check on presidential power.

This chapter has four parts. The first examines how the federal executive power has been interpreted. While the events of September 11, 2001 marked a turning point in the way extensive emergency powers have been applied and used, previous presidents also ordered actions with little regard for either their constitutional validity or approval by Congress. Occasional formal reprimands by the Supreme Court have done little to restrain presidential actions.

The second part examines the National Emergencies Act, adopted in 1976. It required a president to declare formally the existence of a national emergency and provided Congress a means to countermand the declaration; but Congress has never chosen to exercise that power.

The third part reviews the creation and function of the Federal Emergency Management Agency (FEMA) and the National Incident Management System (NIMS). It explores the problems faced when federal authorities have given low priority to disasters and crises that are not terrorism-related, most particularly in the Katrina Hurricane disaster of 2005.

The fourth part outlines the sweeping scope of state emergency laws and their application, especially with reference to the emergencies declared in Ferguson, Missouri in 2014 and Baltimore, Maryland in 2015 to suppress protests against police killings.

Presidential or Executive Power

A president has substantial powers – both as chief executive, charged with seeing that laws are faithfully executed, and as commander-in-chief – to take emergency measures, including to mobilise the armed forces.

Presidents have also repeatedly invoked necessity to justify taking emergency measures, even if they violate constitutional dictates and statutory restrictions on their powers. Perhaps the most blatant public expression of this assertion came in former President Nixon’s 1977 televised interview with David Frost. Asked if the president could decide whether something was in the nation’s best interests and do something illegal, Nixon replied:

Well, when the President does it, that means that it is not illegal … If the President, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the President’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. (Gross and Ní Aoláin 2006: 52–3)

Despite the controversy over Nixon’s claim, the extraordinary powers of the president have been, in effect, shielded and extended over the past four decades with the complicity of both the political establishment, as embodied in Congress, and the legal establishment, as embodied in the judiciary.

During the period from 1972 to 1976 – in response to the discrediting and resignation of Nixon over the Watergate bugging affair, the secret invasion of Cambodia and the failed intensification of the bombing of Vietnam – several congressional initiatives were taken to appear to curtail presidential emergency powers.

The 1972 Special Committee on National Emergencies and Delegated Emergency Powers established by the US Congress found ‘470 special statutes that could be invoked by the president at any time during a declared national emergency’ (Church 1977: 198). The powers included:

to seize property; to organize and control the means of production; to seize commodities; to assign military forces abroad; to institute martial law; to seize and control all transportation and communication; to regulate the operation of private enterprise; to restrict travel; and, in a plethora of other ways, to control the lives of all Americans. (Church 1977: 198)

Four decades on, these powers not only remain intact but have mushroomed. The National Emergencies Act 1976 (50 USC 1601–1651) was supposedly designed to limit and formalise the power of Congress to restrain the emergency powers of the president. It introduced procedural requirements for a president to declare a formal national emergency. The Act was meant to limit the number of national emergencies declared; but there are currently more than 30 persisting national emergencies, compared to the four that existed in 1976 (Thronson 2013).

According to a Senate committee, the existence of four presidentially declared states of emergency giving rise to vast emergency powers, dating back to 1933, made it ‘distressingly clear’ that ‘our Constitutional government has been weakened by 41 consecutive years of emergency rule’ (Thronson 2013: 739–40). Yet, the National Emergencies Act 1976, supposedly enacted to ‘prevent numerous or indefinite declarations of national emergency has become part and parcel of their unmitigated propagation’ (Thronson 2013: 740).

Not only does the national emergency declared by President Bush on 14 September 2001 remain in force – long after the killing of Osama bin Laden and the proclaimed destruction of Al Qaeda’s infrastructure – so do at least 29 other emergencies. Congress, although formally required by the 1976 Act to vote every six months on whether a national emergency should continue, has done so only once (Thronson 2013: 738).

The number of emergencies in place almost certainly exceeds the 30 identified by research, because many presidential directives remain classified and others are likely to have been kept secret from the public (Thronson 2013: 742). A declaration of national emergency gives the president access to powers contained in at least 160 statutory provisions and dozens of executive orders, presidential directives and other regulations (Thronson 2013: 742–3).

As discussed in the second part of this chapter, the 1976 Act itself places no conditions on the president’s ability to declare a national emergency. An original draft of the bill stated that the president could only be authorised to declare a national emergency if the president found it ‘essential to the preservation, protection, and defense of the Constitution, and is essential to the common defense, safety or well-being of the territory and people of the United States’. That proviso was removed in order to leave in place the presidential powers bestowed by various statutory delegations (Thronson 2013: 749).

The Supreme Court has made it clear that the president does not require express congressional or statutory authorisation to exercise such powers domestically. If an emergency threatens the freedom of interstate commerce, transportation of the mail or some other federal government responsibility, he may call upon ‘the army of the Nation, and all its militia … to brush away the obstructions’ (In re Debs, 158 US 364 (1919) at 381).

As discussed in Chapter 2, such judicial rulings have left the way open for increasingly aggressive assertions of presidential, executive and prerogative powers to use military personnel and resources against civilians, flying in the face of the clear intent of the Constitution. In effect, the role of commander-in-chief has been transformed from a guarantor of civilian supremacy over the military to an instrument for utilising the armed forces against civil unrest and political dissent.

Constitutional presidential authority has been asserted to provide a broad basis for the mobilisation of military forces under the banner of homeland security. Particularly since 2001, the White House has asserted that the executive powers of the president and his position as commander-in-chief support wide-ranging exceptions to the Posse Comitatus Act, which generally prohibits the domestic use of the armed forces. Defense Department regulations assert another ‘constitutional’ exception to the Act, founded on the ‘inherent right of the U.S. Government … to ensure the preservation of public order and to carry out governmental operations … by force, if necessary’.

The Civil Disturbance Statutes (10 USC, sections 331–5) allow the president to call up the armed forces and the National Guard (state militia) to suppress challenges to the political order, including insurrections, ‘domestic violence’, unlawful obstructions, combinations, or assemblages, and ‘rebellion against the authority of the United States’.

The Department of Defense (DoD) Directive 3025.12, ‘Military Assistance for Civil Disturbances (MACDIS)’, provides for far-ranging use of the military against civil unrest:

The President is authorized by the Constitution and laws of the United States to employ the Armed Forces of the United States to suppress insurrections, rebellions, and domestic violence under various conditions and circumstances. Planning and preparedness by the Federal Government and the Department of Defense for civil disturbances are important due to the potential severity of the consequences of such events for the Nation and the population … The President has additional powers and responsibilities under the Constitution of the United States to ensure that law and order are maintained. (MACDIS, 4 February 1994: 3)

DoD 3025.12 also states: ‘Under reference (r), the terms “major disaster” and “emergency” are defined substantially by action of the President in declaring that extant circumstances and risks justify Presidential implementation of the legal powers in those statutes.’

Even greater authoritarian provisions have been introduced. The National Security Presidential and Homeland Directive (NSPD 51, HSPD 20) was promulgated in 2007. In the event of a ‘catastrophic emergency’, which the president can declare without congressional approval, NSPD 51 would institute virtual martial law under the authority of the White House and the Department of Homeland Security. It would suspend constitutional government under the provisions of Continuity of Government, leaving extraordinary powers in the hands of the president and vice-president. ‘Catastrophic emergency’ is loosely defined as ‘any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions’. ‘Continuity of Government’ is defined as ‘a coordinated effort within the Federal Government’s executive branch to ensure that National Essential Functions continue to be performed during a Catastrophic Emergency’.

How Have Such Powers Been Aggregated?

The framers of the Constitution saw the prerogative powers of the English monarchy as an insult to democracy. They felt that no one branch of the government should hold unchecked power, and were wary of the inherent powers given to the monarchy (Edelson 2013: Chapter 2). Nevertheless, many official and academic advocates of broad presidential power deny such intentions by the framers or look to emergency situations being outside the domain of any constitutional limitations (Gross and Ní Aoláin 2006: 72–3).

Broadly speaking, three approaches have been taken to seek to legitimise the president’s emergency powers:

1.   emergency presidential power authorised in advance by Congress;

2.   limited unilateral emergency presidential power subject to retroactive congressional approval;

3.   broad unilateral emergency presidential power defined by the president.

Article 1, section 8 of the Constitution expressly assigns to Congress the ability to declare war, raise armies and call forth the military to suppress insurrection and repel invasions. Of course, Congress may legislate to allow the president certain powers: ‘When the President acts pursuant to an express or implied authorisation of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate’ (Youngstown Sheet & Tube Co. v Sawyer, 343 US 579, 635 (1952).

Despite these provisions, presidents have often independently exercised emergency power – sometimes with approval from Congress or the courts, sometimes with neither. The enumerated powers given to the president in the Constitution amount to little in terms of specific emergency provisions. However, a common argument is that the president must have unilateral emergency powers to repel sudden attacks or to defend the nation, even if that action must then be retroactively approved by Congress, thereby preserving the rule of law (Fisher 2010).

Then there are outright assertions of broad unilateral emergency power defined by the president. These views came to prominence after 9/11 in memoranda prepared by Bush administration lawyers. John Yoo, a law professor working in the Office of Legal Counsel, wrote the memorandum seeking to validate the president’s actions after September 11 (Yoo 2001). Jay Bybee, the Assistant Attorney-General, co-authored the ‘Yoo-Bybee’ memorandum that concluded that ‘enhanced interrogation techniques’ (effectively torture) were permitted in interrogating terrorist suspects (Yoo and Bybee 2002). According to the memo, the brutal interrogation methods amounted to torture only if they caused the same level of pain as ‘organ failure, impairment of bodily function or even death’. Even waterboarding, defined as torture by the US Code of Military Justice for more than a century, was permissible under this standard. Bybee was later appointed a federal judge.

The claim that the president has broad emergency power stems from the insistence on the existence of an inherent power beyond those granted in the Constitution. The president is also regarded as having exclusive power in the field of international relations (Edelson 2013: 9). This is further strengthened by the use of the state secrets doctrine and other legal machinations to stop the courts or Congress from reviewing such orders and actions.

Many legal academics have sought to portray the courts as placing limits on executive power. In Beyond the Law, Paust extensively catalogued the abuses of the US Constitution and international and domestic law by the George W. Bush administration ‘authorized and abetted by previously secret memos, letters, directives, authorizations, and orders’ (Paust 2007: x). Paust contended that ‘during war and threats to national security, it is often the judiciary that has maintained the line between lawful and unlawful exercises of Executive power’ (Paust 2007: xii).

In reality, US courts, like their counterparts globally, have tended to support the executive’s position, either by invoking doctrines such as ‘political question’ or standing to reject jurisdiction over challenges to the executive’s actions, or by siding with, or at least accepting, the government’s assertions (Gross and Ní Aoláin 2006: 63). When faced with alleged national crisis, the judiciary tends to ‘go to war’ (Gross and Ní Aoláin 2006: 77). Examples from Lincoln to Obama highlight the Supreme Court’s reluctance to completely deny the president emergency unilateral powers, while seeking to maintain the appearance of a rule of law.

From Lincoln to Roosevelt

During the Civil War, President Lincoln instructed his generals to suspend habeas corpus for the purposes of suppressing insurrections. Federal troops arrested John Merryman, a US citizen, in his home. Merryman managed to get hold of a lawyer, and a writ of habeas corpus was sought in the Supreme Court. In Ex parte Merryman, 17 F. Cas. 144 (1861), Chief Justice Roger Taney ruled that the president had acted unconstitutionally in suspending habeas corpus:

He [the president] certainly does not faithfully execute the laws if he takes upon himself legislative power by suspending the writ of habeas corpus and the judicial power, also, by arresting and imprisoning a person without due process of law. Nor can any argument be drawn from … the necessities of government for self defence, in times of tumult and danger. The Government of the United States is one of delegated and limited powers.

Taney CJ noted that the framers of the Constitution withheld the plenary powers of the British Crown, which were deemed too broad and dangerous. Ultimately, Lincoln ignored the judgment, appealing instead to Congress for retroactive approval. In 1863 the Habeas Corpus Act exonerated the past suspension of the writ.

In the Prize Cases, the Supreme Court validated Lincoln’s order of a blockade while Congress was out of session. Such an act is generally considered an act of war and thus must be approved by Congress. However the court ruled that Lincoln had implied constitutional power when the nation’s security was at risk and immediate action was needed:

If a war be made by invasion of a foreign nation, the President is not only authorised but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader or States organized in rebellion, it is nonetheless a war although the declaration of it be ‘unilateral’. (The Prize Cases, 67 US 635 (1863) per Grier J)

Edelson contends that the case is limited by its facts – ‘rebellious states were engaged in military action against the federal government’ (Edelson 2013: 46). Nevertheless, many officials, commentators and supporters of broad emergency powers cite the case as judicial authority for implied powers, not least in the ‘war on terrorism’.

One of the most cited cases for the proposition that the courts will uphold legality is Ex parte Milligan, 71 US 2 (1866). Lambdin Milligan had been arrested, charged and convicted by a military commission of several offences, including kidnapping the governor of Indiana. He was sentenced to be hanged. Milligan believed he should have been tried before a civilian court, given that Indiana was ‘not a theatre of war’. The Supreme Court held that as the actions took place in Indiana, and the courts were open, Milligan had the right to a jury trial in a civilian court. In words that have become famous, Justice Davis declared in that case:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of man, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity in which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence. (Ex parte Milligan, 71 US (4 Wall.) 2 (1866) per Davis J at 120–21)

This statement has been hailed as ‘courageous’ and ‘one of the bulwarks of American civil liberty’, while others have described it as an ‘evident piece of arrant hypocrisy’ (Gross and Ní Aoláin 2006: 90). The truth is that Justice Davis’s words left ample room for presidential authoritarianism by insisting that all the powers to preserve the nation’s existence lay within the Constitution itself. His judgment also affirmed resort to martial law under some circumstances:

[T]here are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to the law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society, and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. (Ex parte Milligan, 71 US (4 Wall.) 2 (1866) per Davis J at 126)

When the issue of presidential emergency power next came for testing during World War I, the Supreme Court effectively reversed Justice Davis’s insistence that the source of such power had to be found strictly within the Constitution. While maintaining that a state of emergency could not create powers that did not already exist, the majority of judges insisted that a crisis could alter the scope of existing powers: ‘[A]lthough an emergency may not call into life a power which has never lived, nevertheless emergency may afford a reason for the exertion of a power already enjoyed (Wilson v New 243 US 332 (1917) per White CJ at 348). The majority’s judgment approved the exercise of emergency powers under the aegis of the Constitution in a manner that under normal circumstances would be unconstitutional. This elastic interpretation of constitutionality provided a legal justification for the expansion of presidential power throughout the ensuing century. During World War I, President Wilson also asked Congress for authority to take repressive action, leading to two pieces of draconian legislation – the Espionage and Sedition Acts – whose roles were outlined in Chapter 2.

During the Great Depression of the 1930s, President Roosevelt utilised the Wilson v New emergency powers doctrine as a legal peg for much of the early New Deal legislation that was designed to rescue capitalism from a fundamental breakdown. Roosevelt’s administration equated the acute economic crisis to wartime conditions. This was accepted by the Supreme Court, which declared that ‘while emergency does not create power, emergency may furnish the occasion for the exercise of power’. It ruled that the US government’s war power ‘permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation’ (Home Building & Loan Association v Blaisdell 290 US 398 (1934) per Hughes CJ at 425–6).

In World War II, President Roosevelt both worked with congressional authority and instigated actions on his own, justifying them as emergency responses to threats abroad. In part, he relied upon the Supreme Court’s dicta in Curtis-Wright (299 US 304 (1936)) that the president had plenary and exclusive powers in the field of international relations and could take unilateral action without congressional approval. In Ex parte Quirin

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