Emergency COVID-19 Powers

The president declared a national emergency on March 13, 2020, in response to the corona virus (COVID-19). You can see the announcement here.

Declaring a state of emergency can be very helpful.  Throughout most of U.S. history, emergencies have been declared mainly by state governors and mainly to deal with natural disasters like hurricanes, fires, and earthquakes. Sometimes state governors also declare emergencies due to violence, as happened in Charlotte, Virginia, in 2017 or Los Angeles in 1992. 

The emergency powers granted to the presidency by Congress are extraordinary. As of 2007, according the Congressional Research Service, during an emergency, “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.” 

Awesome power needs to be temporary and should be automatically withdrawn after emergency needs are met.  The U.S. National Emergencies Act of 1976 states that all emergencies must expire after one year if not renewed by the president. Yet, according to the act, the president can renew a declared emergency at any time: congressional approval is not needed.  This loophole made it possible for presidents Bush, Obama, and Trump to renew their 9/11/2001 emergency authorities even though most of the 9/11 plotters had long ago been killed or caught.  The National Emergencies Act also allows Congress to overturn any emergency by a two-thirds majority passed by both houses. Yet, in 42 years, only two resolutions have ever been introduced to cancel an emergency.  Thus, most declared emergencies and the extra powers that come with them remain in effect.

The National Emergencies Act should be fixed.  Emergency powers are sometimes necessary, but they should always be temporary, and only Congress should have the authority to renew them.  Both the House (H.R.1843) and the Senate (S.764) started to tackle the problem in March 2019.  In addition, Congress should review existing powers with the option to cancel some.  There is precedent for this:  when the 1976 act was devised, many were repealed.  Will the reform effort continue, perhaps as the corona virus crisis winds down?

Want to learn more?

• National Emergency Powers: Congressional Research Service, 2019.
• Special Report: America’s Perpetual State of Emergency: USA Today, October 23, 2014.
• Continuation of the National Emergency with Respect to Certain Terrorist Attacks: The Federal Register, September 12, 2018.
• State of Emergency: Wikipedia.
• For more on democracy and republics in general, see our learning modules.