A little deeper on Presidential National Emergency Powers
First off, it is not entirely clear under what constitutional authority the President is allowed to call a national emergency, but due to precedent it seems tolerated. The justification argument is an implied power of the President due to his ability to be Commander in Chief. Congress has powers in Article 1 section 8, "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;” and Article 1 section 9, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” I guess in a round about way, the military that congress is funding, when they funded it, according to Article 8 and 9, was funded to be used at at any moment for emergencies, and as Commander in Chief, POTUS can declare that emergency.
What is a national emergency?
A national emergency is a national crisis or a situation where circumstances threaten the country and call for an immediate response. What actually constitutes an emergency, though, is up for debate and requires the president to use existing law to justify a declaration. Thirty states of emergency are in effect today. (Pic 2)
How does a national emergency function?
In 1976 Congress passed the National Emergencies Act outlining guidelines the President has to follow when declaring a national emergency. The President must specify in the declaration which powers he intends to use, issue public updates if he decides to invoke additional powers, and report to Congress on the government’s emergency-related expenditures every six months. The state of emergency expires after a year unless the president renews it, and the Senate and the House must meet every six months while the emergency is in effect “to consider a vote” on termination.
Of the 30 national emergencies currently in effect congress and during the 40 plus years since the National emergencies act was enacted, Congress has not met even once, let alone every six months, to vote on whether to end them.
What are the President’s emergency powers?
According to the the Brennan Center for Justice at NYU School of Law the President has 123 powers at his disposal (remember though he must invoke the powers he intends to use when declaring a national emergency). These powers range from pretty much anything and everything. For a really good break down of these powers categorised level of restrictions see:
https://www.brennancenter.org/analysis/emergency-powers
^^^^^
Great resource on emergency powers one by one.
—
https://www.usnews.com/news/national-news/articles/2019-01-08/what-is-a-national-emergency-and-when-can-a-president-legally-declare-one
https://www.govinfo.gov/content/pkg/STATUTE-90/pdf/STATUTE-90-Pg1255.pdf (National emergencies act)
https://fas.org/sgp/crs/natsec/98-505.pdf (report prepared for members of congress on National emergency powers)
https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/