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Order Code 98-505 GOV

National Emergency Powers

Updated November 13, 2006

Harold C. Relyea

Specialist in American National Government

Government and Finance Division

National Emergency Powers

Summary

The President of the United States has available certain powers that may be

exercised in the event that the nation is threatened by crisis, exigency, or emergency

circumstances (other than natural disasters, war, or near-war situations). Such

powers may be stated explicitly or implied by the Constitution, assumed by the Chief

Executive to be permissible constitutionally, or inferred from or specified by statute.

Through legislation, Congress has made a great many delegations of authority in this

regard over the past 200 years.

There are, however, 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. 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. The development of this regulatory statute and subsequent

declarations of national emergency are reviewed in this report, which is updated as

events require.

Contents

Background and History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

The Emergency Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Law and Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Congressional Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

The National Emergencies Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

National Emergency Powers:

A Selected Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

List of Tables

Table 1. Declared National Emergencies, 1976-2006 . . . . . . . . . . . . . . . . . . . . 13

1 Thomas I. Cook, ed., Two Treatises of Government, by John Locke (New York: Hafner,

1947), pp. 203-207; Edward S. Corwin, The President: Office and Powers, 1787-1957,

fourth revised edition (New York: New York University Press, 1957), pp. 147-148.

National 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 stand-by 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. Furthermore, Congress may modify, rescind, or render dormant such

delegated emergency authority.

Until the crisis of World War I, Presidents utilized emergency powers at their

own discretion. Proclamations announced the exercise of exigency authority.

However, during World War I and thereafter, Chief Executives had available to them

a growing body of standby emergency authority which became operative upon the

issuance of a proclamation declaring a condition of national emergency. Sometimes

such proclamations confined the matter of crisis to a specific policy sphere, and

sometimes they placed no limitation whatsoever on the pronouncement. These

activations of stand-by emergency authority remained acceptable practice until the

era of the Vietnam war. In 1976, Congress curtailed this practice with the passage

of the National Emergencies Act.

Background and History

The exercise of emergency powers had long been a concern of the classical

political theorists, including the eighteenth-century English philosopher John Locke,

who had a strong influence upon the Founding Fathers in the United States. A

preeminent exponent of a government of laws and not of men, Locke argued that

occasions may arise when the executive must exert a broad discretion in meeting

special exigencies or “emergencies” for which the legislative power provided no

relief or existing law granted no necessary remedy. He did not regard this

prerogative as limited to wartime, or even to situations of great urgency. It was

sufficient if the “public good” might be advanced by its exercise.1

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2 See J. Reuben Clark, Jr., comp., Emergency Legislation Passed Prior to December 1917

Dealing with the Control and Taking of Private Property for the Public Use, Benefit, or

Welfare, Presidential Proclamations and Executive Orders Thereunder, to and Including

January 31, 1918, to Which Is Added a Reprint of Analogous Legislation Since 1775

(Washington: GPO, 1918), pp. 201-228.

3 Theodore Roosevelt, An Autobiography (New York: Macmillan, 1913), pp. 388-389.

Emergency powers were first expressed prior to the actual founding of the

Republic. Between 1775 and 1781, the Continental Congress passed a series of acts

and resolves which count as the first expressions of emergency authority.2 These

instruments dealt almost exclusively with the prosecution of the Revolutionary War.

At the Constitutional Convention of 1787, emergency powers, as such, failed

to attract much attention during the course of debate over the charter for the new

government. It may be argued, however, that the granting of emergency powers by

Congress is implicit in its Article I, section 8 authority to “provide for the common

Defense and general Welfare,” the commerce clause, its war, armed forces, and

militia powers, and the “necessary and proper” clause empowering it to make such

laws as are required to fulfill the executions of “the foregoing Powers, and all other

Powers vested by this Constitution in the Government of the United States, or in any

Department or Officer thereof.”

There is a tradition of constitutional interpretation that has resulted in so-called

implied powers, which may be invoked in order to respond to an emergency

situation. Locke seems to have anticipated this practice. Furthermore, Presidents

have occasionally taken an emergency action which they assumed to be

constitutionally permissible. Thus, in the American governmental experience, the

exercise of emergency powers has been somewhat dependent upon the Chief

Executive’s view of the presidential office.

Perhaps the President who most clearly articulated a view of his office in

conformity with the Lockean position was Theodore Roosevelt. Describing what

came to be called the “stewardship” theory of the presidency, Roosevelt wrote of his

“insistence upon the theory that the executive power was limited only by specific

restrictions and prohibitions appearing in the Constitution or imposed by the

Congress under its constitutional powers.” It was his view “that every executive

officer, and above all every executive officer in high position, was a steward of the

people,” and he “declined to adopt the view that what was imperatively necessary for

the Nation could not be done by the President unless he could find some specific

authorization to do it.” Indeed, it was Roosevelt’s belief that, for the President, “it

was not only his right but his duty to do anything that the needs of the Nation

demanded unless such action was forbidden by the Constitution or by the laws.”3

Opposed to this view of the presidency was Roosevelt’s former Secretary of

War, personal choice for, and actual successor as Chief Executive, William Howard

Taft. He viewed the presidential office in more limited terms, writing “that the

President can exercise no power which cannot be fairly and reasonably traced to

some specific grant of power or justly implied and included within such express grant

as proper and necessary to its exercise.” In his view, such a “specific grant must be

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4 William Howard Taft, Our Chief Magistrate and His Powers (New York: Columbia

University Press, 1916), pp. 139-140; for a direct response to Theodore Roosevelt’s

expression of presidential power, see William Howard Taft, The Presidency (New York,

Charles Scribner’s Sons, 1916), pp. 125-130.

5 Albert L. Sturm, “Emergencies and the Presidency,” Journal of Politics, vol. 11, Feb.

1949, pp. 125-126.

6 See 84 Stat. 799-800, 1468; 85 Stat. 13, 38, 743-755; and 87 Stat. 27-29.

7 See 64 Stat. 798; 50 U.S.C. App. 2061 et seq. (1994).

8 U.S. Congress, Senate Special Committee on the Termination of the National Emergency,

Emergency Powers Statutes, 93rd Cong., 1st sess., S.Rept. 93-549 (Washington: GPO, 1973).

either in the Federal Constitution or in an act of Congress passed in pursuance

thereof. There is,” Taft concluded, “no undefined residuum of power which he can

exercise because it seems to him to be in the public interest....”4

Between these two views of the presidency lie various gradations of opinion,

resulting in perhaps as many conceptions of the office as there have been holders.

One authority has summed up the situation in the following words:

Emergency powers are not solely derived from legal sources. The extent of their

invocation and use is also contingent upon the personal conception which the

incumbent of the Presidential office has of the Presidency and the premises upon

which he interprets his legal powers. In the last analysis, the authority of a

President is largely determined by the President himself.5

Finally, apart from the Constitution, but resulting from its prescribed

procedures, there are statutory grants of power for emergency conditions. The

President is authorized by Congress to take some special or extraordinary action,

ostensibly to meet the problems of governing effectively in times of exigency.

Sometimes these laws are only of temporary duration. The Economic Stabilization

Act of 1970, for example, allowed the President to impose certain wage and price

controls for about three years before it expired automatically in 1974.6 The statute

gave the President emergency authority to address a crisis in the nation’s economy.

Of course, many of these laws are continuously maintained or permanently

available for the President’s ready use in responding to an emergency. The Defense

Production Act, originally adopted in 1950 to prioritize and regulate the manufacture

of military material, is exemplary of this type of statute.7

Finally, there are various stand-by laws that convey special emergency powers

once the President formally declares a national emergency activating them. In 1973,

a Senate special committee studying emergency powers published a compilation

identifying some 470 provisions of federal law delegating to the executive

extraordinary authority in time of national emergency.8 The vast majority of them

are of the stand-by kind — dormant until activated by the President. However,

formal procedures for invoking these authorities, accounting for their use, and

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9 90 Stat. 1255; 50 U.S.C. 1601-1651.

10 Webster’s New Collegiate Dictionary (Springfield, MA: G & C Merriam, 1974), p. 372.

11 Home Building and Loan Association v. Blaisdell, 290 U.S. 398, 440 (1934).

12 Edward S. Corwin, The President: Office and Powers, 1787-1957, p. 3.

13 U.S. Congress, Senate Special Committee on the Termination of the National Emergency,

National Emergency, hearings, 93rd Cong., 1st sess., Apr. 11-12, 1973 (Washington: GPO,

1973), p. 277.

14 Ibid., p. 279.

regulating their activation and application were established a while ago by the

National Emergencies Act of 1976.9

The Emergency Concept

Relying upon constitutional authority or congressional delegations made at

various times over the past 200 years, the President of the United States may exercise

certain powers in the event that the continued existence of the nation is threatened by

crisis, exigency, or emergency circumstances. What is a national emergency?

In the simplest understanding of the term, the dictionary defines an emergency

as “an unforeseen combination of circumstances or the resulting state that calls for

immediate action.”10 In the midst of the crisis of the Great Depression, a 1934

Supreme Court majority opinion characterized an emergency in terms of urgency and

relative infrequency of occurrence as well as equivalence to a public calamity

resulting from fire, flood, or like disaster not reasonably subject to anticipation.11 An

eminent constitutional scholar, the late Edward S. Corwin, explained emergency

conditions as being those “which have not attained enough of stability or recurrency

to admit of their being dealt with according to rule.”12 During congressional

committee hearings on emergency powers in 1973, a political scientist described an

emergency in the following terms: “It denotes the existence of conditions of varying

nature, intensity and duration, which are perceived to threaten life or well-being

beyond tolerable limits.”13 Corwin also indicated it “connotes the existence of

conditions suddenly intensifying the degree of existing danger to life or well-being

beyond that which is accepted as normal.”14

There are perhaps at least four aspects of an emergency condition. The first is

its temporal character: an emergency is sudden, unforeseen, and of unknown

duration. The second is its potential gravity: an emergency is dangerous and

threatening to life and well-being. The third, in terms of governmental role and

authority, is the matter of perception: who discerns this phenomenon? The

Constitution may be guiding on this question, but not always conclusive. Fourth,

there is the element of response: by definition, an emergency requires immediate

action, but is, as well, unanticipated and, therefore, as Corwin notes, cannot always

be “dealt with according to rule.” From these simple factors arise the dynamics of

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15 While some might argue that the concept of emergency powers can be extended to

embrace authority exercised in response to circumstances of natural disaster, this dimension

is not within the scope of this report. Various federal response arrangements and programs

for dealing with natural disasters have been established and administered with no potential

or actual disruption of constitutional arrangements. With regard to Corwin’s

characterization of emergency conditions, these long-standing arrangements and programs

suggest that natural disasters do “admit of their being dealt with according to rule.”

16 1 Stat. 264-265.

17 This authority may presently be found at 10 U.S.C. 334.

18 See James D. Richardson, ed., A Compilation of the Messages and Papers of the

Presidents, vol. 1 (New York: Bureau of National Literature, 1897), pp. 149-154.

national emergency powers.15 These dynamics can be seen in the history of the

exercise of emergency powers.

Law and Practice

During the summer of 1792, residents of western Pennsylvania, Virginia, and

the Carolinas began forcefully opposing the collection of a federal excise tax on

whiskey. Anticipating rebellious activity, Congress enacted legislation providing for

the calling forth of the militia to suppress insurrections and repel invasions.16 Section

3 of this statute required that a presidential proclamation be issued to warn insurgents

to cease their activity.17 If hostilities persisted, the militia could be dispatched. On

August 17, 1794, President Washington issued such a proclamation. The insurgency

continued. The President then took command of the forces organized to put down

the rebellion.18

Here was the beginning of a pattern of policy expression and implementation

regarding emergency powers. Congress legislated extraordinary or special authority

for discretionary use by the President in a time of emergency. In issuing a

proclamation, the Chief Executive notified Congress that he was making use of this

power and also apprised other affected parties of his emergency action.

Over the next 100 years, Congress enacted various permanent and standby laws

for responding largely to military, economic, and labor emergencies. During this

span of years, however, the exercise of emergency powers by President Abraham

Lincoln brought the first great dispute over the authority and discretion of the Chief

Executive to engage in emergency actions.

By the time of Lincoln’s inauguration (March 4, 1861), seven states of the lower

South had announced their secession from the Union; the Confederate provisional

government had been established (February 4, 1861); Jefferson Davis had been

elected (February 9, 1861) and installed as president of the confederacy (February 18,

1861); and an army was being mobilized by the secessionists. Lincoln had a little

over two months to consider his course of action.

When the new President assumed office, Congress was not in session. For

reasons of his own, Lincoln delayed calling a special meeting of the legislature, but

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19 Ibid., vol. 7, pp. 3215-3216.

20 Clinton L. Rossiter, Constitutional Dictatorship (New York: Harcourt, Brace, and World,

1963), p. 225.

21 Ibid.

22 See James D. Richardson, comp., A Compilation of the Messages and Papers of the

Presidents, vol. 7, p. 3216.

23 Ibid., pp. 3216-3217.

24 Ibid., p. 3225.

25 James G. Randall, Constitutional Problems Under Lincoln (Urbana, IL: University of

Illinois Press, 1951); also see Wilfred E. Binkley, President and Congress (New York:

Alfred A. Knopf, 1947), pp. 124-127; Clinton L. Rossiter, Constitutional Dictatorship, pp.

233-234; and Woodrow Wilson, Constitutional Government in the United States (New

York: Columbia University Press, 1907), p. 58.

soon ventured into its constitutionally designated policy sphere. On April 19, he

issued a proclamation establishing a blockade on the ports of the secessionist states,19

“a measure hitherto regarded as contrary to both the Constitution and the law of

nations except when the government was embroiled in a declared, foreign war.”20

Congress, of course, had not been given an opportunity to consider a declaration of

war.

The next day, the President ordered the addition of 19 vessels to the navy “for

purposes of public defense.”21 A short time later, the blockade was extended to the

ports of Virginia and North Carolina.22

By a proclamation of May 3, Lincoln ordered that the regular army be enlarged

by 22,714 men, that navy personnel be increased by 18,000, and that 42,032

volunteers be accommodated for three-year terms of service.23 Such a directive, of

course, antagonized many Representatives and Senators, because Congress is

specifically authorized by Article I, Section 8, of the Constitution “to raise and

support armies.”

In his July message to the newly assembled Congress, Lincoln suggested that,

while his actions with regard to the expansion of the armed forces might be legally

suspect, “[t]hese measures, whether strictly legal or not, were ventured upon under

what appeared to be a popular and a public necessity, trusting then, as now, that

Congress would readily ratify them. It is believed,” he wrote, “that nothing has been

done beyond the constitutional competency of Congress.”24

Indeed, Congress subsequently did legislatively authorize, and thereby approve,

the President’s actions regarding his increasing armed forces personnel, and would

do the same later concerning some other questionable emergency actions. In the case

of Lincoln, the opinion of scholars and experts is “that neither Congress nor the

Supreme Court exercised any effective restraint upon the President.”25 The

emergency actions of the Chief Executive were either unchallenged or approved by

Congress, and were either accepted or, because of almost no opportunity to render

judgment, went largely without notice by the Supreme Court. The President made

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26 39 Stat. 1814.

27 39 Stat. 728.

28 41 Stat. 1359.

29 48 Stat. 1689.

30 40 Stat. 411.

31 48 Stat. 1.

32 48 Stat. 1691.

33 54 Stat. 2643.

34 55 Stat. 1647.

a quick response to the emergency at hand, a response which Congress or the courts

might have rejected in law, but which, nonetheless, had been made in fact and with

some degree of popular approval. Similar controversy would arise concerning the

emergency actions of Presidents Woodrow Wilson and Franklin D. Roosevelt. Both

men exercised extensive emergency powers with regard to world hostilities, and

Roosevelt also used emergency authority to deal with the Great Depression. Their

emergency actions, however, were largely supported by statutory delegations and a

high degree of approval on the part of both Congress and the public.

Furthermore, during the Wilson and Roosevelt presidencies, a major procedural

development occurred in the exercise of emergency powers — use of a proclamation

to declare a national emergency and thereby activate all stand-by statutory provisions

delegating authority to the President during a national emergency. The first such

national emergency proclamation was issued by President Wilson on February 5,

1917.26 Promulgated on the authority of a statute establishing the United States

Shipping Board, the proclamation concerned water transportation policy.27 It was

statutorily terminated, along with a variety of other wartime measures, on March 3,

1921.28

President Franklin D. Roosevelt issued the next national emergency

proclamation some 48 hours after assuming office.29 Proclaimed March 6, 1933, on

the somewhat questionable authority of the Trading with the Enemy Act of 1917,30

the proclamation declared a so-called “bank holiday” and halted a major class of

financial transactions by closing the banks. Congress subsequently gave specific

statutory support for the Chief Executive’s action with the passage of the Emergency

Banking Act on March 9.31 Upon signing this legislation into law, the President

issued a second banking proclamation, based upon the authority of the new law,

continuing the bank holiday until it was determined that banking institutions were

capable of conducting business in accordance with new banking policy.32

Next, on September 8, 1939, President Roosevelt promulgated a proclamation

of “limited” national emergency, though the qualifying term had no meaningful legal

significance.33 Almost two years later, on May 27, 1941, he issued a proclamation

of “unlimited” national emergency.34 This action, however, actually did not make

any important new powers available to the Chief Executive in addition to those

activated by the 1939 proclamation. The President’s purpose in making the second

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35 61 Stat. 449.

36 65 Stat. 451.

37 66 Stat. 54; extended at 66 Stat. 96, 137, and 296.

38 66 Stat. 330; extended at 67 Stat. 18 and 131.

39 66 Stat. c31.

40 64 Stat. A454.

41 84 Stat. 2222.

42 See 10 U.S.C. 673 (1970).

43 85 Stat. 926.

proclamation was largely to apprise the American people of the worsening conflict

in Europe and growing tensions in Asia.

These two war-related proclamations of a general condition of national

emergency remained operative until 1947, when certain of the provisions of law they

had activated were statutorily rescinded.35 Then, in 1951, Congress terminated the

declaration of war against Germany.36 In the spring of the following year, the Senate

ratified the treaty of peace with Japan. Because these actions marked the end of

World War II for the United States, legislation was required to keep certain

emergency provisions in effect. Initially, the Emergency Powers Interim

Continuation Act temporarily maintained this emergency authority.37 It was

subsequently supplanted by the Emergency Powers Continuation Act, which kept

selected emergency delegations in force until August 1953.38 By proclamation in

April 1952, President Harry S. Truman terminated the 1939 and 1941 national

emergency declarations, leaving operative only those emergency authorities

continued by statutory specification.39

President Truman’s 1952 termination, however, specifically exempted a

December 1950 proclamation of national emergency he had issued in response to

hostilities in Korea.40 Furthermore, this condition of national emergency would

remain in force and unimpaired well into the era of the Vietnam war.

Two other proclamations of national emergency also would be promulgated

before Congress once again turned its attention to these matters. Faced with a postal

strike, President Richard M. Nixon declared a national emergency in March 1970,41

thereby gaining permission to use units of the Ready Reserve to assist in moving the

mail.42 A second national emergency was proclaimed by President Nixon in August

1971 to control the balance of payments flow by terminating temporarily certain trade

agreement provisos and imposing supplemental duties on some imported goods.43

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44 The historical record suggests that, prior to 1973, when congressional research revealed

their existence, other outstanding proclaimed national emergencies were not apparent to, or

much discussed by, Members of Congress.

45 U.S. Congress, House Committee on the Judiciary, National Emergencies Act, hearings,

94th Cong., 1st sess., Mar. 6, 13, 19, and Apr. 9, 1975 (Washington: GPO, 1975), p. 20.

46 Other members of the Special Committee included Senators Clifford P. Case, Clifford P.

Hansen, Philip A. Hart, James B. Pearson, Claiborne Pell, and Adlai E. Stevenson III.

Congressional Concerns

In the years following the conclusion of U.S. armed forces involvement in active

military conflict in Korea, occasional expressions of concern were heard in Congress

regarding the continued existence of President Truman’s 1950 national emergency

proclamation long after the conditions prompting its issuance had disappeared. There

was some annoyance that the President was retaining extraordinary powers intended

only for a time of genuine emergency, and a feeling that the Chief Executive was

thwarting the legislative intent of Congress by continuously failing to terminate the

declared national emergency.44

Growing public and congressional displeasure with the President’s exercise of

his war powers and deepening U.S. involvement in hostilities in Vietnam prompted

interest in a variety of related matters. For Senator Charles Mathias, interest in the

question of emergency powers developed out of U.S. involvement in Vietnam and

the incursion into Cambodia. Together with Senator Frank Church, he sought to

establish a Senate special committee to study the implications of terminating the

1950 proclamation of national emergency that was being used to prosecute the

Vietnam war, “to consider problems which might arise as the result of the

termination and to consider what administrative or legislative actions might be

necessary.” Such a panel was initially chartered by S.Res. 304 as the Special

Committee on the Termination of the National Emergency in June of 1972, but did

not begin operations before the end of the year.45

With the convening of the 93rd Congress in 1973, the special committee was

approved again with S.Res. 9. Upon exploring the subject matter of national

emergency powers, however, the mission of the special committee became more

burdensome. There was not just one proclamation of national emergency in effect,

but four such instruments, issued in 1933, 1950, 1970, and 1971. The United States

was in a condition of national emergency four times over, and with each

proclamation, the whole collection of statutorily delegated emergency powers was

activated. Consequently, in 1974, with S.Res. 242, the study panel was rechartered

as the Special Committee on National Emergencies and Delegated Emergency

Powers to reflect its focus upon matters larger than the 1950 emergency

proclamation. Its final mandate was provided by S.Res. 10 in the 94th Congress,

although its termination date was necessarily extended briefly in 1976 by S.Res. 370.

Senator Church and Senator Mathias co-chaired the panel.46

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47 See U.S. Congress, Senate Special Committee on National Emergencies and Delegated

Emergency Powers, A Brief History of Emergency Powers in the United States, committee

print, 93rd Cong., 2nd sess. (Washington: GPO, 1974); U.S. Congress, Senate Special

Committee on National Emergencies and Delegated Emergency Powers, A Recommended

National Emergencies Act, 93rd Cong., 2nd sess., S.Rept. 93-1170 (Washington: GPO, 1974);

U.S. Congress, Senate Special Committee on National Emergencies and Delegated

Emergency Powers, Executive Orders in Times of War and National Emergency, committee

print, 93rd Cong., 2nd sess. (Washington: GPO, 1974); U.S. Congress, Senate Special

Committee on National Emergencies and Delegated Emergency Powers, Executive Replies,

3 parts, committee print, 93rd Cong., 2nd sess. (Washington: GPO, 1974); U.S. Congress,

Senate Special Committee on National Emergencies and Delegated Emergency Powers,

National Emergencies and Delegated Emergency Powers, 94th Cong., 2nd sess., S.Rept. 94-

922 (Washington: GPO, 1976); U.S. Congress, Senate Special Committee on the

Termination of the National Emergency, Emergency Powers Statutes, 93rd Cong., 1st sess.,

S.Rept. 93-549 (Washington: GPO, 1973); U.S. Congress, Senate Special Committee on the

Termination of the National Emergency, National Emergency, 3 parts, hearings, 93rd Cong.,

1st sess., Apr. 11-12, July 24, and Nov. 28, 1973 (Washington: GPO, 1973).

The Special Committee on National Emergencies and Delegated Emergency

Powers produced various studies during its existence.47 After scrutinizing the United

States Code and uncodified statutory emergency powers, the panel identified 470

provisions of federal law which delegated extraordinary authority to the executive in

time of national emergency. Not all of them required a declaration of national

emergency to be operative, but they were, nevertheless, extraordinary grants. The

special committee also found that no process existed for automatically terminating

the four outstanding national emergency proclamations. Thus, the panel began

developing legislation containing a formula for regulating emergency declarations in

the future and otherwise adjusting the body of statutorily delegated emergency

powers by abolishing some provisions, relegating others to permanent status, and

continuing others in a standby capacity. In addition, the panel also began preparing

a report offering its findings and recommendations regarding the state of national

emergency powers in the nation.

The National Emergencies Act

The special committee, in July 1974, unanimously recommended legislation

establishing a procedure for the presidential declaration and congressional regulation

of a national emergency. The proposal also modified various statutorily delegated

emergency powers. In arriving at this reform measure, the panel consulted with