Emergency powers are designed for when plans need to change, and fast, by allowing the president to override certain Constitutional provisions in a time of crisis. But in the last century, national emergencies have gone from a rarity to a tool that presidents use dozens of times while in office.
We talk about what a president can (and cannot) do during a state of emergency, and how Congress has tried to put checks on that power, with help from Kim Lane Scheppele, author of Law in a Time of Emergency.
EPISODE SEGMENTS
Archival News Audio: [00:02:20] "Immediately following the first attack, I implemented our government's emergency response"..."President Barack Obama has declared swine flu a national emergency"... "Now, not over the next 68 days, but right now"... "The bottom line is this we're in a national emergency. We need to act like we're in a national emergency."
Hannah McCarthy: [00:02:43] Nick, how common would you wager a national emergency is?
Nick Capodice: [00:02:49] A national emergency? Sounds like a very rare thing. Like it's it's reserved for emergencies. It's like break this glass, but only if there is an emergency.
Hannah McCarthy: [00:02:58] Currently in December 2021, when we are recording this, we have 40 active national emergencies.
Nick Capodice: [00:03:07] Forty!
Hannah McCarthy: [00:03:07] Yeah, and some of these emergencies have been active for decades. The oldest is from nineteen seventy nine and started after the Iran hostage crisis.
Archival News Audio: [00:03:17] "An embassy in Tehran is in the hands of Muslim students tonight, spurred on by an anti-American speech by the Ayatollah Khomeini. They stormed the embassy..."
Nick Capodice: [00:03:27] I mean, I assume we're not just talking about something that happened that seemed like an emergency at the time. This is an official codified term, right?
Hannah McCarthy: [00:03:35] Yeah, it's more than someone just yelling, "It's an emergency!" Actually, it's not too different from that, but it is that the president is the one yelling it.
Archival News Audio (Trump): [00:03:46] "To unleash the full power of the federal government in this effort. Today, I am officially declaring a national emergency..."
Hannah McCarthy: [00:03:53] And in doing so, invoking their quote "emergency powers." It is the political equivalent of, as you said, breaking the glass or like pushing the big red button.
Nick Capodice: [00:04:02] Have there always been so many emergencies going on at the same time?
Hannah McCarthy: [00:04:06] Ok, so you said that a national emergency sounds like it should be a rare thing, right?
Nick Capodice: [00:04:11] Yeah.
Hannah McCarthy: [00:04:11] And it used to be. In the last century, the president's use of emergency powers went from a rarity to a tool that presidents use dozens of times while in office, and they often extend into the next administration and the one after that. Our last four presidents have had 53 national emergencies between them. Clinton had 17, George W. Bush had 13. Obama had 12 and Trump had 11.
Hannah McCarthy: [00:04:41] But before we talk about how we ended up with dozens of simultaneous national emergencies, some decades old, we should talk about what emergency powers are and why they exist in the first place. I'm Hannah McCarthy.
Nick Capodice: [00:04:55] I'm Nick Capodice.
Hannah McCarthy: [00:04:56] And this is Civics 101. Today we are talking about the power that a president gets during a national emergency and how Congress has tried to put checks on that power.
Nick Capodice: [00:05:06] So what are emergency powers?
Hannah McCarthy: [00:05:09] I'm going to leave that up to Kim Lane Scheppele, the author of Law in a Time of Emergency, which is I really like that title. Virginia Prescott, the former host of Civics 101, spoke to her back in 2017.
Kim Lane Scheppele: [00:05:19] Emergency powers are used to override laws that would otherwise normally have effect, and actually it's also used to override some constitutional provisions that would otherwise have effect.
Hannah McCarthy: [00:05:34] Emergency powers are designed for moments when plans need to change and fast. And the president decides that they can't wait for the slow bureaucracy of Congress to act.
Kim Lane Scheppele: [00:05:44] For example, you know, presidents all the time declare national disasters or emergencies. If there are hurricanes, floods, giant snowstorms, you know various kinds of weather related emergencies, earthquakes would be another example. And when the president declares emergency powers, what the president can usually do is to take money that's been allocated for other purposes and redirect it to deal with the crisis that the country is facing at the moment.
Nick Capodice: [00:06:11] So an emergency allows the president to override certain laws and take money Congress at designated to one thing and use it somewhere else.
Hannah McCarthy: [00:06:20] Yes.
Kim Lane Scheppele: [00:06:20] Constitution 101 says that Congress must appropriate funds for specific uses. And so here you've got a case where the president sort of overrides that and takes money. Congress has put aside for one purpose and uses it for another purpose.
Nick Capodice: [00:06:37] Is there any law that defines what actually counts as an emergency?
Hannah McCarthy: [00:06:41] There is no strict definition of a quote unquote "emergency" in our constitution, but the understanding of how that word can be used has evolved over time. All a president needs to do is issue a proclamation and file it with a federal register announcing a state of emergency because of a specific reason. A hurricane. An attack of some kind. A pandemic.
Nick Capodice: [00:07:05] It sounds like emergency powers are a way for a president to push their agenda without having to work with Congress, as this always been sort of a tried and true workaround for navigating the wheels of Congress.
Kim Lane Scheppele: [00:07:19] Well, it used to be the case. If you go back far enough in American history, presidents would just declare emergencies on their own.
Hannah McCarthy: [00:07:27] Now, presidents weren't declaring emergencies with any regularity until the 1930s. It was right after the stock market crashed. It was the beginning of the Great Depression, and what happens is newly elected President Franklin Delano Roosevelt declares a Federal Bank Holiday.
Hannah McCarthy: [00:07:42] He closes the country's banks for four days, and this was the first step in the government reconstruction of our financial and economic fabric.
Hannah McCarthy: [00:07:51] Now, Roosevelt justified this move under the Trading with Enemies Act of 1917, which gave the president the power to restrict trade with enemies during wartime.
Nick Capodice: [00:08:03] This is 1933.
Hannah McCarthy: [00:08:04] Yeah.
Nick Capodice: [00:08:05] We weren't at war in 1933.
Hannah McCarthy: [00:08:07] No. But Roosevelt found a way to retroactively justify this act because at the time there were over 100 newly elected Democrats in Congress who also wanted to make radical changes to the banking system. Roosevelt asked Congress to pass a joint resolution that became the Emergency Banking Act, which not only gave the president the power to restrict trade in a national emergency, but also created 12 new Federal Reserve banks that could issue additional currency and stabilize the nation's economy.
Nick Capodice: [00:08:42] What it sounds like is that Roosevelt used an emergency situation as an opportunity to give the president more power to act in future emergency situations.
Hannah McCarthy: [00:08:52] Yeah, and he also used it to drastically change the banking structure in the United States and for the next two decades. T
Hannah McCarthy: [00:08:59] he list of things presidents justified doing in certain situations like wartime or an emergency kept growing and growing. Like President Truman's decision to send troops to South Korea without congressional authorization during the Cold War and President Johnson's escalation of America's participation in the Vietnam War
Archival News Audio (Nixon): [00:09:19] "To protect our men who are in Vietnam..."
Hannah McCarthy: [00:09:22] And then President Nixon came along
Archival News Audio (Nixon): [00:09:25] "And to guarantee the continued success of our withdrawal and Vietnamization programs. I have concluded that the time has come for action."
Hannah McCarthy: [00:09:36] During the Vietnam War, Nixon ordered secret bombings in Cambodia without alerting Congress, and Congress was not pleased.
Archival News Audio (Nixon): [00:09:45] "I would rather be a one term president and do what I believe was right and to be a two term president at the cost of seeing America become a second rate power."
Hannah McCarthy: [00:10:01] Don't forget there was something else that pushed Congress and Nixon at odds.
Archival News Audio: [00:10:05] "Watergate. The White House called it a third rate burglary, but it escalated into the worst political scandal in American history."
Hannah McCarthy: [00:10:15] In 1972, someone broke into the Democratic Party headquarters at the Watergate hotel, stole documents and bugged a phone. Nixon hampered the federal investigation into the break-in at one point ordering his attorney general to fire the special prosecutor, Archibald Cox, the very man who was investigating Nixon.
Archival News Audio: [00:10:38] "Half an hour after the special Watergate prosecutor had been fired. Agents of the FBI, acting at the direction of the White House, sealed off the offices of the special prosecutor. The offices of the attorney general and the offices of the deputy attorney general. That's a stunning..."
Hannah McCarthy: [00:10:55] Here's Kim Lane Scheppele again.
Kim Lane Scheppele: [00:10:57] Congress got a little bit nervous about exactly what presidents can do, especially when investigations are closing in on them, and the president seems to have no limits on the way the president can, shall we say, hold off those kinds of investigations.
Nick Capodice: [00:11:11] I think of this is kind of like the political equivalent of a snowball fight. It's all fun and games until that one kid starts packing his snowballs with rocks.
Hannah McCarthy: [00:11:20] Congress passed a number of reforms throughout the 1970s to rein in the executive branch, starting with the War Powers Act of 1973, which limited the president's ability to take military action without congressional approval. It was vetoed by Nixon. That veto was overturned. And during this period, a Senate inquiry found that there were more than 450 statutes that the executive branch could use when a president declares a state of emergency.
Kim Lane Scheppele: [00:11:54] Congress developed a series of laws that actually regulate presidential emergency powers.
Hannah McCarthy: [00:11:59] The result?
Hannah McCarthy: [00:12:00] Two acts that drew boundaries around presidential powers. The National Emergencies Act of 1976 and the International Emergency Economic Powers Act of 1977. We'll talk about them right after this.
Nick Capodice: [00:12:47] Hannah, you said there were two acts that gave Congress more checks on presidential power. How did they do that?
Hannah McCarthy: [00:12:53] Let's talk about the International Emergency Economic Powers Act or the IEEPA first, because it defines a type of national emergency called economic sanctions.
Archival News Audio (Clinton): [00:13:04] "I am formally announcing my intention to cut off all trade and investment with Iran."
Hannah McCarthy: [00:13:10] Which make up 65 of the 71 national emergencies that have been declared since 1976. Here's Kim Lane Scheppele, the author of Law in a Time of Emergency,
Kim Lane Scheppele: [00:13:21] And under that act, the president can designate certain individuals and organizations for sanctions that they can't receive certain kinds of materials or funds from the United States, for example.
Hannah McCarthy: [00:13:32] And if there is an actual attack, the president can confiscate property connected with a country group or person that aided in the attack.
Nick Capodice: [00:13:39] How does that actually work?
Hannah McCarthy: [00:13:41] Trump's national security adviser, John Bolton, explains this process pretty well. So what happened is in twenty nineteen President Trump increased sanctions against Venezuela.
Archival News Audio: [00:13:50] "So basically one way to summarize this to a business, for example, is do you want to do business in Venezuela or do you want to do business with the United States?"
Hannah McCarthy: [00:14:01] The first national emergency declared under that law was that one from 1979 that we mentioned earlier. Jimmy Carter imposed economic sanctions on Iran after diplomats at the embassy were taken hostage. Those sanctions were lifted in 1981 as part of an agreement to release the hostages. But Reagan instated new sanctions in 1984 during the Iraq-Iran war, and we have had some form of sanctions against Iran pretty much ever since.
Nick Capodice: [00:14:32] Ok, the IEEPA defined economic sanctions on foreign enemies, but what about the other types of emergencies that wouldn't benefit from imposing sanctions on another country like hurricanes or floods, snowstorms or pandemics?
Hannah McCarthy: [00:14:48] This is where the National Emergencies Act comes in. One major thing this act did was to establish rules for what the president can and cannot do when they declare a national emergency. Remember how I said there were more than 400 statutes that the president could use in an emergency in the seventies? Now that number is one hundred and thirty six.
Nick Capodice: [00:15:10] Wow.
Hannah McCarthy: [00:15:12] Thirteen of those require congressional approval. But the president can carry out one hundred and twenty three without getting permission from Congress.
Nick Capodice: [00:15:21] So of those that remain, what kind of powers are we talking about?
Kim Lane Scheppele: [00:15:25] Yes, under certain laws, the president actually has the power, for example, to call out the National Guard to deal with emergencies and to deploy even some military forces.
Hannah McCarthy: [00:15:35] The executive branch can suspend regulation on things like weapons acquisition and testing and handling, including suspending the prohibition on testing weapons on humans,
Kim Lane Scheppele: [00:15:47] Things like curfews or preventive detention. We actually saw this with the outbreak of these various kind of diseases that come into the U.S. with U.S. carriers, and then those people are quarantined for a while. That's a different kind of emergency power where suddenly somebody's civil liberties are suspended and they have to spend time in a hospital for a while.
Archival News Audio: [00:16:06] "And in Japan, the numbers of confirmed cases continue to rise on that quarantined cruise ship near Tokyo. This is the site of the largest outbreak outside of mainland China, and it's caused that ship to be under quarantine."
Hannah McCarthy: [00:16:17] The president can lift certain restrictions on disposal of medical waste in the ocean. They can overturn some legal protections for farmlands if those lands need to be used for defensive purposes.
Hannah McCarthy: [00:16:29] And here's one that stuck out to me. The Secretary of Defense can postpone annual assessments of harassment, violence and discrimination on the basis of sex. Gender, race or ethnicity? If it is not practicable during a time of war or national emergency,
Nick Capodice: [00:16:50] That it's, it's just so shocking to me because it feels like during an emergency we can throw out a lot of the ways we normally do things because there's an emergency. But I never knew it could be used to justify denying basic civil rights protections
Hannah McCarthy: [00:17:06] And just the fact that they thought to include that right. What's very telling is what is in here and what is not. Every one of these statutes involves political decision making, and this one strikes me as something that does not obviously contribute to some sort of defense strategy other than it means focusing less on workplace conditions of your employees, whereas the other ones, at least to me, have a clearer function. Even suspending weapons testing on humans, as nightmarish as that seems, has a clear, if horrifying, defensive strategy.
Nick Capodice: [00:17:43] So all of those things are weirdly legal under states of emergency, because what Congress has done is to provide this whole catalog of alternative legalities, so to speak, alternative legal powers that the president can invoke as long as he first says the magic words I declare a state of emergency.
Nick Capodice: [00:18:03] Did the National Emergencies Act limit how long a national emergency lasts?
Kim Lane Scheppele: [00:18:08] There are limits. The president has at most 12 months to have a state of emergency before it has to be renewed.
Hannah McCarthy: [00:18:15] These restrictions, by the way, also apply to economic sanctions under the EPA.
Kim Lane Scheppele: [00:18:21] But it turns out to be extremely easy to renew it, and you can renew these states of emergency indefinitely.
Hannah McCarthy: [00:18:27] After the terrorist attacks on 9/11, President Bush declared a national emergency quote by reason of certain terrorist attacks so that he could increase the power of our military by re apportioning money toward defense spending and changing people's military contracts
Kim Lane Scheppele: [00:18:44] To sometimes extend their terms of duty to sometimes refuse to allow them to retire or leave at the end of their terms if they're needed. In other words, it was a set of powers that had to do with his role as commander in chief. So that was declared right after 9-11, and every year since that time, the president, whoever the president is. Signs the continuation of that declaration of emergency.
Hannah McCarthy: [00:19:09] In the 20 years since September 11th, Bush, Obama, Trump and Biden have all extended this national emergency, which again allows the president and his secretary of defense to extend someone's military commitment or call them out of retirement.
Kim Lane Scheppele: [00:19:24] These are time limited, but the time limits are, shall we say, not terribly binding.
Nick Capodice: [00:19:34] How does Congress end a national emergency other than just hoping it's going to expire?
Hannah McCarthy: [00:19:39] The National Emergencies Act originally allowed Congress to end a national emergency through a concurrent resolution, which is when the Senate and the House passed identical resolutions that cannot be vetoed by the president. However, the Supreme Court ruled that this is unconstitutional in 1985, and the act was changed so that Congress needs a joint resolution to end a national emergency, which can be vetoed by the president.
Nick Capodice: [00:20:04] And I'm going to assume a president is pretty likely to veto an act that would limit their power.
Hannah McCarthy: [00:20:09] Yes, which means that in order for Congress to actually end a national emergency, both houses will likely need a supermajority. That's two thirds of the vote to overturn the veto.
Kim Lane Scheppele: [00:20:20] So it looks like Congress is kind of reining the president in which, you know, not a bad thing if you've got an out of control president. The problem is the reining in is not very serious. The president, whenever he thinks it's justified, can declare a state of emergency and then use powers that Congress has scattered throughout the laws to address the crisis.
Hannah McCarthy: [00:20:41] A recent example of this was Trump's declaration of a national emergency at the U.S. southern border in 2019.
Archival News Audio: [00:20:47] "This morning, the president plans to announce an end round around Congress, spending billions more on his border wall than Congress has approved."
Hannah McCarthy: [00:20:56] Trump wanted Congress to allocate money toward building a wall along the u.s.-mexico border. The fight between Trump and Congress over this funding led to a thirty five day government shutdown. Finally, Trump declared a national emergency to give himself the power to divert money that Congress had allocated to other places to border wall construction instead.
Nick Capodice: [00:21:19] We're the House and Senate able to pass a joint resolution to end the national emergency.
Hannah McCarthy: [00:21:24] Yes, but Trump vetoed it. And while the Senate was able to get a supermajority to override the veto, the House did not.
Archival News Audio: [00:21:32] "Two hundred and forty eight lawmakers voted to override, but that was thirty eight short of the two thirds majority needed. The emergency declaration along the southern border still faces..."
Hannah McCarthy: [00:21:44] The emergency only ended when President Joe Biden came into office, and in the meantime, billions of dollars of federal money was funneled into the construction of the border wall. Over the last 90 years or so, presidents have pushed against the checks placed on their power by Congress, and Congress has tried to push back.
Kim Lane Scheppele: [00:22:09] Emergencies are so routinely declared in the U.S. and they are so routinely used for this kind of messaging purpose where they're designed to say, you know, yes for handling things that we forget that they really are exceptions to normal law. And in some cases, they really are truly extraordinary exceptions to that to regular law. We shouldn't be comforted by the sheer number of states of emergency that exist at any one time in the United States.
Kim Lane Scheppele: [00:22:37] Surely, if this is a routine problem, you know you have some natural disaster and you have to get relief supplies across roads that otherwise would be closed or, you know, something of that kind. There's got to be some way we can handle that short of a generalized suspension of normal law.
Kim Lane Scheppele: [00:22:57] Because if you had really major states of emergency, which is to say massive civil liberties violation tanks in the streets, you know, all the kinds of things we associate with rogue government, for example, we wouldn't really have a way to theoretically distinguish it or to actually bring legal resources to bear to check it.
Nick Capodice: [00:23:15] What stands out to me from all this, Hannah, is that even after the National Emergencies Act, the use of emergency powers has just gone up. It feels like once Congress has defined what a president is and is not allowed to do when they declare an emergency, those powers have been more readily used. Well, that'll do it for today's episode on emergency powers.
Nick Capodice: [00:23:48] We hope you like that we didn't put any sirens in this episode. You know, we should have done it for like a joke, but is there anybody else who hates it more than anything when you're listening to something on the radio, in your car and the siren - drives me crazy. Anyhoo, this episode was written and produced by Christina Phillips. Well done, Christina, with help from me Nick Capodice and Hannah McCarthy. Our staff includes Jacqui Fulton. Rebecca Lavoie is our Executive Producer, Music in this episode by BioUnit, Chris Zabriskie, Blue Note Sessions, Broke for Free, Komiku, Little Glass Man, Maarten Schellekens, and Bobby Renz. Civics 101 is a production of NHPR, New Hampshire Public Radio.
