This morning I read on my news feed that President Trump says he has an “absolute right” to declare a national emergency.
Someone has beaten him to it. Actually, we’re already in emergency status. In fact, we’ve been in a national emergency since 1979, and the idea goes back much further than that. You may recall from your history books that President Lincoln suspended habeas corpus in 1861 and that President Truman ordered the seizure of steel mills in 1952 (and no, I don’t remember either one). Currently, there are thirty-one national emergencies declared since 1976 that are technically still in effect (according to CNN).
The year 1976 is significant in one respect. The National Emergencies Act of 1976 requires the President to explain the specific laws that make his declaration legal, and also tasks the House and the Senate to review a declaration every six months. To end a national emergency, Congress could simply pass a joint resolution. “The original idea for the law was to formalize the process because, in the past, presidents had simply proclaimed national emergencies and they went on indefinitely,” says Chris Edelson, author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, and professor of Political Science at American University. (As you might have guessed, this was a reaction to the ethical fallout from Presidents like Richard Nixon.)
So given this law, why are we still under thirty-one national emergencies? The National Emergencies Act is pretty much being ignored. A 2014 USA Today investigation found that Congress has been renewing them without any checking.
But now that the political environment is more contentious, this time may be different.
For a more in-depth discussion, including a list of all 31 current national emergencies, see “The U.S. Has Been in a Constant State of National Emergency Since 1979. Here’s Why” by Olivia B. Waxman at http://time.com/5496270/presidents-history-national-emergency/? .