Legal Issues In the News

Presidential Emergency Powers


Jennifer Pahre University of Illinois College of Law

The Constitution of the United States does not expressly give the President emergency powers.  The charters of other nations describe the circumstances under which emergencies may be declared, and what powers are available during those emergencies.  But not our Constitution.  However, many legal scholars think that emergency powers are implied, because when an emergency comes along, Congress may not be able to respond as quickly as necessary.  So, the President can immediately address a crisis, while lawmakers consider what legislation should be passed to best manage it.

The Constitution does gives Congress the ability to suspend the Writ of Habeas Corpus when “Public Safety” requires it because of  “Rebellion or Invasion.”  However, it was not Congress, but rather President Abraham Lincoln who suspended the right of habeas corpus during the Civil War.  Other Presidents have also used emergency powers to take actions that we now recognize as unconstitutional.  For example, President Roosevelt used his emergency powers when he issued an executive order requiring the removal of all Japanese Americans from coastal areas to internment camps during the Second World War.  The Supreme Court, in Korematsu v. United States, found that this was not an abuse of his powers.  It was only much later, in the 2018 case, Trump v. Hawaii, that the Korematsu decision was expressly repudiated by the Court.

The Supreme Court case Youngstown Sheet & Tube Company v. Sawyer provides  guidance on how to think about the scope of Presidential authority. This case reversed President Truman’s takeover of the nation’s steel mills during the Korean War.  The Supreme Court found that that neither the president’s Commander-in-Chief powers nor any claimed emergency powers permitted him to seize private property without supporting Congressional legislation.  In a concurring opinion, Justice Jackson divided Presidential authority into three distinct categories.  First, there are cases where the President is acting with Congressional authority.  Here, the President’s authority is at its strongest, bolstered by Congressional approval.  Second, there are cases where Congress is silent on the subject.  Here, the President’s authority is not as strong, because he is stepping forward on his own.  And third, there are cases where the President’s actions go against Congressional authority.  Here, the President’s authority is at its weakest, because he is acting against the will of Congress. 

Unlike Truman or Roosevelt, a modern President wishing to declare a national emergency may well find supporting legislation already in place.  This is because, over the past decades, states of emergency have been declared, have been supported by legislation, and have not officially lapsed.  Congress tried to fix this problem by passing the National Emergencies Act which places disclosure and reporting obligations on the President if he wishes to issue an emergency declaration.  The Act also requires Congress to address pending declared emergencies every six months.  But the legislation failed to do the job, and there are now dozens of federal statutes that provide special powers to the President when he declares a national emergency. These powers concern a wide selection of subjects, from land management to public health to the use of federal employees and military personnel.  And the permitted actions range from the use of force to the requisition of private property to the shuttering of radio stations. 

Supreme Court Justice Jackson, who dissented in the Korematsu case, once said: “While the Declaration of Independence was directed against an excess of authority, the Constitution was directed against anarchy.”  The peacetime management of our government is best achieved through thoughtful Congressional deliberation and the steady use of regular Presidential administrative powers, as our Constitutional framers intended.