Tuesday, June 22, 2010

National Emergencies Act [1976]

AS part of the Senator Frank Church reforms after the Nixon Constitutional violations, the Congress passed and President Gerald Ford signed into law a statute known as the National Emergencies Act (50 U.S.C. 1601 and following). The Special Committee under Frank Church's leadership had discovered that over 400 statutes in the US Code rested on the declaration of a National Emergency. What was not clear at all is whether the Declaration of National Emergency at the inception of the Korean War by President Truman meant all those statutes had full force and effect. Thus the statute was drafted in part to curtail the sloppiness if not the direct assertion of power in National Emergencies by the President. Today fewer than 150 statutes even contain the term "National Emergency" and I would argue most don't convey much in the way of new authority when there standby status is ended. Still over 25 declarations of National Emergency are outstanding and almost all are renewals.

What the National Emergencies Act did provide was a procedural restriction on the use of National Emergency although the statute did not in anyway restrict otherwise in a substantive fashion Presidential authority. The President is to publish any declaration in the Federal Register under the statutory scheme and indicate what specific statutory authority he/she is triggering and what use he/she intends to make of it. And of course a copy of that declaration and Executive Order must be transmitted to the Congress.

Perhaps of some significance is that the Executive Branch no longer sends proposed legislation to Congress that incorporates a "national emergency" trigger thus rendering it standby authority. The result is that gradually the term is disappearing from use by both Congressional members and the Executive Branch. Still the statutory procedure does at least allow the interested public to be notified of Presidential action.

In the drafting of Executive Order 12656 which was issued on November 18, 1988 by President Ronald Reagan and superseded among other Executive Orders a 1969 Executive Order 11490, the drafting team deliberatly utilized the term "National Security Emergency" which appears nowhere in the US Code and was first utilized in E.O. 12472.

In general limitations from the era of FRANK CHURCH have NOT withstood the test of time, including the so called WAR POWERS ACT. But at least at that point in time Congress was at least trying to preserve the Constitutional separation of powers by its actions. Were that today's effort by Congress.