Defining “National Emergency” is a Distraction
By: Andrew Fiedler
President Donald Trump recently declared Proclamation 9844 “Declaring a National Emergency Concerning the Southern Border of the United States.” Unlike what many news organizations are reporting, mere statements from the president do not expand executive power. The authority of the president to issue proclamations and the power of Congress to pass legislation are the primary ways the executive branch may expand its authority.
The powers provided to the President upon a declaration of a national emergency are scattered throughout the United States Code (U.S.C.). Title 50 of the U.S.C., titled “War and National Defense,” contains the only clear definition of “national emergency” but limits it to the specific subchapter. It reads: “For the purposes of this subchapter . . . the term ‘national emergency’ means a general declaration of emergency with respect to the national defense made by the President or by the Congress.” Title 10 of the U.S.C., titled “Armed Forces,” enables the President to undertake military construction projects after a declaration of a national emergency. Proclamation 9844 invokes Title 10 § 2808 of the U.S Code and makes it applicable with section 301 of the National Emergencies Act. There is no clear definition of “national emergency” applicable to the entire U.S.C., so judges have looked to the legislative history and purpose to interpret the meaning.
To interpret Proclamation 9844, judges will look to determine whether the actions within the Proclamation are expressly or impliedly permitted by Congress or prohibited by Congress. Courts have held that Congress implies permission when Congress does not say anything about the application of the power but grants the power broadly to the President. Without any clear and precise definition of terms within a statute or the context of the statute, courts have considered legislative history. According to the U.S. Senate report from the Committee on Government Operations, the National Emergencies Act is intended to “establish clear procedures and safeguards for the exercise by the President conferred upon him by other statutes.” Further, courts often turn to historical precedent to determine the meaning of words within statutes. According to the Congressional Research Service, the Senate Special Committee on National Emergencies and Delegated Emergency Powers determined that precedent suggested that “nature of the national emergencies was less of a concern than their duration and the statutory authorities . . . .” The Act was not intended to define when the President was authorized to declare a situation a national emergency. Instead, the Act gave the authority to the executive branch and retained authority for statutes, like Title 10 § 2808, which further limits and explains what a declaration of a national emergency does to the government.
The National Emergencies Act and its legislative history suggest that Congress intended the President to use executive discretion when deciding whether to declare a national emergency, while reserving Congress’s power to terminate the declaration of a national emergency when necessary. The question going forward should not be what the definition of national emergency is but should be whether the veto power of the President should be permitted to overrule a joint resolution to end the national emergency. Whether Congress should have the ability to terminate a national emergency by a simple majority (51%) or a controlling majority (67%) will be an interesting debate that judges may need to address going forward and people should spend their time debating.