Emergency Powers

In any republic, much depends upon the trust of political leaders and the people that election winners will not use their power to entrench themselves at the expense of the losers.  In fact, entrenchment has been a feature of many governments around the world.  Leaders find an excuse to act outside of normal law – by declaring a state of emergency – allegedly in defense of the nation.

Declaring a state of emergency is not necessarily a bad thing.  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 governors declare emergencies due to violence, as happened in Charlotte, Virginia in 2017 or in Los Angeles in 1992.  Thus far, presidential national emergency declarations have usually been confined in scope.  Most have been in reaction to events outside of the U.S. such as the wars in the former Yugoslavia. So far, so good. However …

The kinds of emergency powers granted to the presidency by Congress have been abused in other countries and times.  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.”  That’s a lot of power.  That kind of power has been abused in other countries and times.

• One of the most famous examples comes from Germany. The constitution of the Weimar Republic (1919–1933) allowed states of emergency to deal with rebellions. A declared state of emergency allowed the President to take emergency measures without the prior consent of the Reichstag (parliament). This invited abuse: emergencies were invoked several times to enact laws by decree when the government failed to pass them with a parliamentary majority. The ultimate abuse followed the 1933 Reichstag fire of 1933. The new Chancellor, Adolf Hitler, blamed the fire on communists and used it as an excuse to declare the state of emergency that enabled his totalitarian dictatorship.

• Another example comes from India.  Prime Minister, Indira Gandhi (1966-77 and 1980-84) was a highly successful ruler. Over time, her increasingly autocratic style began to motivate resistance despite her victorious 1971 war with Pakistan, even more so after the 1973 OPEC oil price crisis and a drought.  After the elections of June 1975, Gandhi’s party was defeated. On June 12, 1975, the Allahabad High Court found the prime minister guilty on the charge of misuse of government machinery for her 1971 election campaign. The court declared her election null and void – although on June 24, the court allowed her to keep her job until her appeal was heard. That was a mistake. The next day, she initiated a state of emergency. The government used police forces across the country to place thousands of protestors and strike leaders in jail. The press was immediately censored, most of Gandhi’s opponents were imprisoned, many political organizations were banned, and the judiciary was weakened. Elections for the Parliament and state governments were postponed. Until then, Indira Gandhi ruled by decree – and allowed her son, Sanjay, to rule as well. By 1977, none of the political or economic problems had been solved but internal and external criticism of her regime had become overwhelming.  In response, Gandhi announced allowed new elections and lost. Amazingly, infighting within the party that replaced hers allowed Indira Gandhi to mount a new run for Prime Minister without being prosecuted.  She was re-elected as prime minister in 1980 before being assassinated in 1984.

The U.S. National Emergencies Act of 1976 is not strong enough to stop the kinds of abuse seen in Germany and India.  The Act requires the president to cite a legal basis for an emergency and to say which emergency powers he or she would exercise.  All emergencies must expire after one year if not renewed by the president. The president can renew a declared emergency at any time: congressional approval is not needed.  This 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. Osama Bin Laden was killed in 2011.  The National Emergencies Act allows Congress to overturn any emergency by a resolution passed by both houses. Yet, in 42 years, only one resolution has ever been introduced to cancel an emergency.  Thus, most declared emergencies and the extra powers that come with them remain in effect. The bottom line is that it is easy for U.S. presidents to gain extra powers outside the constitution and the laws by declaring and renewing emergencies. Thus far, Congress has not chosen to end them.

Want to learn more?

• National Emergency Powers: Congressional Research Service, 2007.
• 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. See Germany and India and associated links.