What Qualifies as a National Emergency? These Historic Events Offer a Guide
(Bloomberg) -- The breakdown of negotiations with congressional Democrats means it’s becoming more likely that President Donald Trump will declare a national emergency to build a wall on U.S. southern border -- an extraordinary action sure to draw lawsuits and consternation on both sides of the aisle.
Trump told Fox News’ Sean Hannity on Thursday that he would “see what happens over the next few days” but would “likely” invoke emergency powers if he doesn’t reach a deal with Democrats.
That may be hastened by the failure Thursday of the only live negotiation on Capitol Hill to resolve Trump’s partial shutdown of the federal government, now poised to become the longest in U.S. history, just as the first of about 800,000 federal workers are set to miss their paychecks Friday.
It would be far from the first time a president has declared a national emergency in support of domestic objectives. Among the most famous was President Abraham Lincoln’s decision in 1861 to suspend habeas corpus, citing the demands of the Civil War.
Since then, emergencies have been declared during crises large (the Great Depression, the aftermath of the Sept. 11 terror attacks) and small (remember the 1970 postal strike?).
Trump, eager to bypass a Congress that has refused to appropriate funds for the wall, is considering invoking emergency powers that allows the Department of Defense to shift military construction funds during a crisis.
The White House has directed the Army Corps of Engineers to examine a February 2018 emergency spending bill, which included disaster relief for Puerto Rico and other areas, to see what funds could be diverted to a border wall, according to a congressional aide who asked for anonymity to discuss private briefings by the administration.
Most invocations of temporary executive power have been related to foreign policy: prosecuting a war, or exerting pressure on adversaries by restricting trade and transactions with the U.S. A surprisingly large number of them are designed to freeze assets of foreign nationals from particular countries, or those deemed to be hurting U.S. interests.
On a few occasions, however, presidents have also used emergency declarations to further their domestic policy goals.
Here are some notable examples of national emergency declarations:
- In 1917, at the onset of America’s entry into World War I, President Woodrow Wilson declared an emergency related to shipping in an attempt to increase the country’s ability to transport food and raw materials by water.
- In 1933, shortly after taking office during the Great Depression, President Franklin Roosevelt used an emergency declaration to close banks, in an attempt to halt bank runs. The move gave Congress time to pass the Emergency Banking Act, which allowed banks to reopen once federal examiners decided they had enough money to operate.
- In 1970, President Richard Nixon declared a national emergency to break a postal strike, using the National Guard to deliver the mail. The strike ended a week later, when the federal government agreed to a retroactive pay raise. Still, Nixon’s invocation of emergency powers in this case drew the scrutiny of Congress, not unlike Democrats have promised today.
- In 1971, Nixon invoked his emergency powers again, this time to impose a 10 percent duty on imports, as part of his administration’s push to take the country off the gold standard. The surcharge on existing tariffs was in effect for four months, and applied to consumer and manufactured goods such as appliances, home furnishings, liquors, automobiles, machinery, and other items, according to a 1974 article in the New York Times, which said importers were allowed to pass on the cost of the extra duty to consumers. The Supreme Court later ruled that Nixon had exceeded his powers.
In 1976, Congress passed a bill putting rules around a president’s emergency powers. That measure, called the National Emergencies Act, said that emergency declarations would terminate after one year unless the president continued them, and imposed some reporting requirements on the executive.
But the president’s ability to assume broad powers on the basis of a declared emergency remained and the legislation hasn’t seemed to slow the use of those powers:
- In 1993, President Bill Clinton declared that the proliferation of nuclear, biological and chemical weapons constituted a national emergency, and ordered his officials to stop Americans from “participation in activities that could contribute” to that proliferation.
- Two weeks after the 9/11 attacks, President George W. Bush declared a national emergency “blocking property and prohibiting transactions with persons who commit, threaten to commit, or support terrorism.” While the measure was framed as cutting off money to foreign sponsors of terrorism, it applied to Americans as well.
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