Definition of National Emergency under the National Emergencies Act

Definition of National Emergency under the National Emergencies Act

Legal Sidebari

Definition of National Emergency under the
National Emergencies Act
March 1, 2019
States and various organizations have filed a number of lawsuits challenging President Trump’s
proclamation of a national emergency in order to secure funding for the construction of physical barrier
along the U.S. southern border. The lawsuits assert that no national emergency exists and that the
President has overstepped his authority. Some observers are concerned that the declaration of a national
emergency under present circumstances will set a precedent for future presidents to declare national
emergencies to override Congress on other policy matters. Others have raised alarm about the number of
and nature of statutes that provide the President specific authorities once he has proclaimed a national
emergency.
The National Emergencies Act (NEA), described in a previous Legal Sidebar post, provides a framework
for the President to declare a national emergency, but does not define what may constitute a national
emergency. Accordingly, assuming that the plaintiffs have demonstrated standing to bring suit, a court
may turn to statutory canons, such as the ordinary meaning doctrine, or to the legislative history of the
NEA and related statutes to determine the meaning of national emergency for purposes of the NEA. A
court could also look to pre-NEA precedent to evaluate whether a particular declaration squares with
Congress’s expectations at the time of the NEA’s enactment. On the other hand, a court may also declare
that the NEA provides insufficient judicially manageable standards according to which a court could
review the validity of a national emergency declaration. In such a case, the court would find the question
non-justiciable under the political question doctrine. Finally, a court may conclude that the absence of a
definition and deference to the President’s constitutional powers evidence an intent to leave the definition
to the President’s discretion. Still, a court may be able to determine the propriety of any action taken
pursuant to an emergency statute without first having to determine whether a national emergency exists.
Ordinary Meaning
The Supreme Court has held that:
A fundamental canon of statutory construction is that, unless otherwise defined, words will be
interpreted as taking their ordinary, contemporary, common meaning.
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A court may turn to a dictionary to discern ordinary meaning. Merriam-Webster, for example, defines
national emergency to mean:
a state of emergency resulting from a danger or threat of danger to a nation from foreign or domestic
sources and usually declared to be in existence by governmental authority.
Because the definition of national emergency includes the term emergency, further consultation is
necessary. An emergency, according to Merriam-Webster, is:
an unforeseen combination of circumstances or the resulting state that calls for immediate action.
Additionally, in differentiating emergency from related terms, Merriam-Webster notes that it:
applies to a sudden unforeseen situation requiring prompt action to avoid disaster.
Accordingly, assuming the dictionary definitions have not changed significantly since the time the NEA
was enacted, a national emergency may be defined as a sudden unforeseen set of circumstances posing a
danger to the nation to an extent that requires prompt action to avert disaster. Whether to adopt this
definition and whether the situation at the southern border meets those criteria is subject to debate and
may not be easily resolvable by a court.
Legislative History
Another means for a court to divine Congress’s intent, particularly when the statute in question is
ambiguous, is to look to the legislative history surrounding its enactment.
Enacted in 1976, the NEA was born out of concern that Presidents had accrued too many extraordinary
statutory powers available during a national emergency and that Presidents were using national
emergencies to invoke powers that were originally intended to be available only during wartime. The
Senate Special Committee on the Termination of the National Emergency (later renamed the Special
Committee on National Emergencies and Delegated Emergency Powers, “Special Committee”) concluded
that:
Over the course of at least the last 40 years … Presidents have had available an enormous—
seemingly expanding and never-ending—range of emergency powers. Indeed, at their fullest extent
and during the height of a crisis, these “prerogative” powers appear to be virtually unlimited,
confirming Locke’s perceptions [that these prerogatives “should be left to the discretion of him that
has the executive power”]. Because Congress and the public are unaware of the extent of emergency
powers, there has never been any notable congressional or public objection made to this state of
affairs. Nor have the courts imposed significant limitations.
The Special Committee quoted Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v.
Sawyer as “sound guidance” with respect to the exercise of emergency powers:
The appeal … that we declare the existence of inherent powers ex necessitate to meet an emergency
asks us to do what many think would be wise, although it is something the forefathers omitted. They
knew what emergencies were, knew the pressures they engender for authoritative action, knew, too,
how they afford a ready pretext for usurpation. We may also suspect that they suspected that
emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the
writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, they
made no express provision for exercise of extraordinary authority because of a crisis. I do not think
we rightfully may so amend their work…
In the practical working of our Government we already have evolved a technique within the
framework of the Constitution by which normal executive powers may be considerably expanded
to meet an emergency, Congress may and has granted extraordinary authorities which lie dormant
in normal times but may be called into play by the Executive in war or upon proclamation of a
national emergency. In 1939, upon congressional request, the Attorney General listed ninety-nine

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such separate statutory grants by Congress of emergency or wartime executive powers. They were
invoked from time to time as need appeared. Under this procedure we retain Government by law-
special, temporary law, perhaps, but law nonetheless. The public may know the extent and
limitations of the powers that can be asserted, and persons affected may be informed from the statute
of their rights and duties.
The Special Committee catalogued the statutes available to the President once he declares a national
emergency, but did not make an effort to define what constitutes a national emergency. Its concern
focused instead on the means for congressional review, oversight, and termination of a national
emergency so that these powers were not available effectively on a permanent basis.
The House version of the National Emergencies Act, H.R. 3844 (94th Cong.), contained some qualifying
language to describe the situations in which the proclamation of a national emergency was authorized.
Section 201(a) would have provided:
In the event the President finds that the proclamation of a national emergency is essential to the
preservation, protection, and defense of the Constitution, and is essential to the common defense,
safety, or well-being of the territory and people of the United States, the President is authorized to
proclaim the existence of a national emergency.
When the Senate Committee on Government Operations took up the bill, it eliminated the necessity for
the finding of requisite circumstances, finding the language to be too broad as well as unclear and
ambiguous. The Committee thought the language “might have been construed to confer upon the
President statutory authority to declare national emergencies, other than that which he now has through
various statutory delegations.” The Committee adopted the present language to clarify and narrow the
authority in order to convey that the NEA is an effort to establish safeguards for the exercise of
emergency powers already conferred upon the President by other statutes. The Committee “ma[de] no
attempt to define when a declaration of national emergency is proper.” (S. Rept. 94-1168 at 3).
Consequently, the validity of a particular national emergency may be inferred from the statutory authority
the President invokes to confront it.
Some emergency authorities do in fact qualify the nature of the emergency. One of the statutes President
Trump has exercised, 10 U.S.C. § 2808, for example, requires the existence of a national emergency “that
requires use of the armed forces.” The International Emergency Economic Powers Act (IEEPA), the basis
for most currently existing national emergencies, may be exercised “to deal with any unusual and
extraordinary threat, which has its source in whole or substantial part outside the United States, to the
national security, foreign policy, or economy of the United States….” Other emergency statutes do not
qualify the term “national emergency,” but many apply during situations of “war or national emergency,”
which may suggest an intent that the emergency be a crisis similar in impact to armed conflict.
National Emergencies: Precedent
In resolving questions involving the separation of powers between Congress and the President, courts
often turn to historical evidence to ascertain how the branches have previously interacted. It may be
useful to review the precedents involving declarations of national emergencies preceding or in effect at
the time of the NEA’s enactment.
The Special Committee was apparently concerned that the following declarations of emergency remained
in force in 1974:
 the national emergency proclaimed by President Truman on December 16,1950, in
response to the crisis in Korea;
 the national emergency declared by Franklin Roosevelt on March 9,1933, to cope with
the banking crisis;

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 the national emergency declared by Richard Nixon on March 23,1970, to deal with the
Post Office strike;
 the national emergency declared by Richard Nixon on August 15, 1971, to implement
currency restrictions and to enforce controls on foreign trade.
The Special Committee’s report suggests that the nature of the national emergencies was less of a concern
than their duration and the statutory authorities that could be brought to bear. It could be read to suggest
that Congress did not disapprove of any particular national emergency, making a comparison with
President Trump’s declaration fruitful. It may be worth evaluating whether the national emergencies
declared prior to the NEA meet the definition proposed above or they negated congressional action.
The Special Committee was concerned with other types of emergency actions taken by presidents to meet
various situations, but actual proclamations of national emergencies appear to have been fairly rare, as the
following table demonstrates.
Table 1. Pre-NEA Proclamations of National Emergencies

Date
President
National Emergency Declaration
February 5, 1917
Woodrow Wilson
Proclamation 1354—Emergency in Water Transportation of the
United States
April 3, 1917
Woodrow Wilson
Executive Order 2572—Temporarily Suspending Eight-Hour Law
Provisions in the Department of Agriculture
September 27, 1917
Woodrow Wilson
Executive Order 2718—Suspending the Eight-Hour Day in
Construction of Immigrant Station at Baltimore, Md
March 6, 1933
Franklin D. Roosevelt
Proclamation 2039—Declaring Bank Holiday
August 28, 1933
Franklin D. Roosevelt
Executive Order 6260 on Hoarding and Exporting Gold.
Proclamation 2352—Proclaiming a National Emergency in
Connection with the Observance, Safeguarding, and
September 8, 1939
Franklin D. Roosevelt
Enforcement of Neutrality and the Strengthening of the
National Defense Within the Limits of Peace-Time
Authorizations
Proclamation 2487—Proclaiming That an Unlimited National
Emergency Confronts This Country, Which Requires That Its
May 27, 1941
Franklin D. Roosevelt
Military, Naval, Air and Civilian Defenses Be Put on the Basis of
Readiness to Repel Any and All Acts or Threats of Aggression
Directed Toward Any Part of the Western Hemisphere
December 16, 1950
Harry S. Truman
Proclamation 2914—Proclaiming the Existence of a National
Emergency
March 23, 1970
Richard M. Nixon
Proclamation 3972—Work Stoppages in the Postal Service
February 23, 1971
Richard M. Nixon
Proclamation 4031—Proclaiming the Suspension of the Davis-
Bacon Act of March 3, 1931

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August 15, 1971
Richard M. Nixon
Proclamation 4074—Imposition of Supplemental Duty for
Balance of Payments Purposes
Source: Gerhard Peters and John T. Woolley, The American Presidency Project, https://www.presidency.ucsb.edu
Note: CRS searched Executive Orders, Proclamations, and Declarations for the term national
emergency, identifying those that contained an initial declaration of a national emergency.

Author Information

Jennifer K. Elsea

Legislative Attorney

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