***** CRS Report for Congress Received through the CRS Web Order Code 98-505 GOV National Emergency Powers Updated September 18, 2001 Harold C. Relyea Specialist in American National Government Government and Finance Division Congressional Research Service * The Library of Congress
...[D]uring the Wilson and Roosevelt presidencies, a major procedural development occurred in the exercise of emergency powers -- use of a proclamation to declare a national emergency and thereby activate all stand -- by statutory provisions delegating authority to the President during a national emergency. The first such national emergency proclamation was issued by President Wilson on February 5, 1917. 26 Promulgated on the authority of a statute establishing the United States Shipping Board, the proclamation concerned water transportation policy.27 It was statutorily terminated, along with a variety of other wartime measures, on March 3, 1921. 28
President Franklin D. Roosevelt issued the next national emergency proclamation some 48 hours after assuming office.29 Proclaimed March 6, 1933, on the somewhat questionable authority of the Trading with the Enemy Act of 1917, 30 the proclamation declared a so-called "bank holiday" and halted a major class of financial transactions by closing the banks. Congress subsequently gave specific statutory support for the Chief Executive's action with the passage of the Emergency Banking Act on March 9. 31 Upon signing this legislation into law, the President issued a second banking proclamation, based upon the authority of the new law, continuing the bank holiday until it was determined that banking institutions were capable of conducting business in accordance with new banking policy.32
Next, on September 8, 1939, President Roosevelt promulgated a proclamation of "limited" national emergency, though the qualifying term had no meaningful legal significance.33 Almost two years later, on May 27, 1941, he issued a proclamation of "unlimited" national emergency.34 This action, however, actually did not make any important new powers available to the Chief Executive in addition to those activated by the 1939 proclamation. The President's purpose in making the second proclamation was largely to apprise the American people of the worsening conflict in Europe and growing tensions in Asia.
These two war-related proclamations of a general condition of national emergency remained operative until 1947, when certain of the provisions of law they had activated were statutorily rescinded.35 Then, in 1951, Congress terminated the declaration of war against Germany.36 In the spring of the following year, the Senate ratified the treaty of peace with Japan. Because these actions marked the end of World War II for the United States, legislation was required to keep certain emergency provisions in effect. Initially, the Emergency Powers Interim Continuation Act temporarily maintained this emergency authority.37 It was subsequently supplanted by the Emergency Powers Continuation Act, which kept selected emergency delegations in force until August 1953. 38 By proclamation in April 1952, President Harry S. Truman terminated the 1939 and 1941 national emergency declarations, leaving operative only those emergency authorities continued by statutory specification.39
President Truman's 1952 termination, however, specifically exempted a December 1950 proclamation of national emergency he had issued in response to hostilities in Korea.40 Furthermore, this condition of national emergency would remain in force and unimpaired well into the era of the Vietnam war.
Two other proclamations of national emergency also would be promulgated before Congress once again turned its attention to these matters. Faced with a postal strike, President Richard M. Nixon declared a national emergency in March 1970, 41 thereby gaining permission to use units of the Ready Reserve to assist in moving the mail.42 A second national emergency was proclaimed by President Nixon in August 1971 to control the balance of payments flow by terminating temporarily certain trade agreement provisos and imposing supplemental duties on some imported goods.43
Congressional Concerns
In the years following the conclusion of U.S. armed forces involvement in active military conflict in Korea, occasional expressions of concern were heard in Congress regarding the continued existence of President Truman's 1950 national emergency proclamation long after the conditions prompting its issuance had disappeared. There was some annoyance that the President was retaining extraordinary powers intended only for a time of genuine emergency, and a feeling that the Chief Executive was thwarting the legislative intent of Congress by continuously failing to terminate the declared national emergency.44 [44 The historical record suggests that, prior to 1973, when congressional research revealed their existence, other outstanding proclaimed national emergencies were not apparent to, or much discussed by, Members of Congress.]
Growing public and congressional displeasure with the President's exercise of his war powers and deepening U.S. involvement in hostilities in Vietnam prompted interest in a variety of related matters. For Senator Charles Mathias, interest in the question of emergency powers developed out of U.S. involvement in Vietnam and the incursion into Cambodia. Together with Senator Frank Church, he sought to establish a Senate special committee to study the implications of terminating the 1950 proclamation of national emergency that was being used to prosecute the Vietnam war, "to consider problems which might arise as the result of the termination and to consider what administrative or legislative actions might be necessary." Such a panel was initially chartered by S.Res. 304 as the Special Committee on the Termination of the National Emergency in June of 1972, but did not begin operations before the end of the year.45
With the convening of the 93 rd Congress in 1973, the special committee was approved again with S.Res. 9. Upon exploring the subject matter of national emergency powers, however, the mission of the special committee became more burdensome. There was not just one proclamation of national emergency in effect, but four such instruments, issued in 1933, 1950, 1970, and 1971. The United States was in a condition of national emergency four times over, and with each proclamation, the whole collection of statutorily delegated emergency powers was activated. Consequently, in 1974, with S.Res. 242, the study panel was rechartered as the Special Committee on National Emergencies and Delegated Emergency Powers to reflect its focus upon matters larger than the 1950 emergency proclamation. Its final mandate was provided by S.Res. 10 in the 94th Congress, although its termination date was necessarily extended briefly in 1976 by S.Res. 370. Senator Church and Senator Mathias co-chaired the panel.46
The special committee produced various studies during its existence.47 After scrutinizing the United States Code and uncodified statutory emergency powers, the panel identified 470 provisions of federal law which delegated extraordinary authority to the executive in time of national emergency. Not all of them required a declaration of national emergency to be operative, but they were, nevertheless, extraordinary grants. The special committee also found that no process existed for automatically terminating the four outstanding national emergency proclamations. Thus, the panel began developing legislation containing a formula for regulating emergency declarations in the future and otherwise adjusting the body of statutorily delegated emergency powers by abolishing some provisions, relegating others to permanent status, and continuing others in a standby capacity. In addition, the panel also began preparing a report offering its findings and recommendations regarding the state of national emergency powers in the nation.
The National Emergencies Act
The special committee, in July 1974, unanimously recommended legislation establishing a procedure for the presidential declaration and congressional regulation of a national emergency. The proposal also modified various statutorily delegated emergency powers. In arriving at this reform measure, the panel consulted with various executive branch agencies regarding the significance of existing emergency statutes, recommendations for legislative action, and views as to the repeal of some provisions of emergency law.
This recommended legislation was introduced by Senator Church for himself and others on August 22, 1974, and became S. 3957. It was reported from the Senate Committee on Government Operations on September 30 without public hearings or amendment.48 The bill was subsequently discussed on the Senate floor on October 7, when it was amended and passed.49
Although a version of the reform legislation had been introduced in the House on September 16, becoming H.R. 16668, the Committee on the Judiciary, to which the measure was referred, did not have an opportunity to consider either that bill or the Senate adopted version due to the press of other business -- chiefly the impeachment of President Nixon and the nomination of Nelson A. Rockefeller to be Vice President of the United States. Thus, the National Emergencies Act failed to be considered on the House floor before the final adjournment of the 93rd Congress.
With the convening of the next Congress, the proposal was introduced in the House on February 27, 1975, becoming H.R. 3884, and in the Senate on March 6, becoming S. 977....During the course of House debate on September 4, there was agreement to both the committee amendments and a floor amendment providing that national emergencies end automatically one year after their declaration unless the President informs Congress and the public of a continuation. The bill was then passed on a 388-5 yea and nay vote and sent to the Senate, where it was referred to the Committee on Government Operations.52
The Senate Committee on Government Operations held a hearing on H.R. 3884 on February 25, 1976, 53 The bill was subsequently reported on August 26 with one substantive and several technical amendments.54 The following day, the amended bill was passed and returned to the House.55 On August 31, the House agreed to the Senate amendments,56 clearing the proposal for President Gerald Ford's signature on September 14. 57
As enacted, the National Emergencies Act consisted of five titles. The first of these generally returned all standby statutory delegations of emergency power, activated by an outstanding declaration of national emergency, to a dormant state two years after the statute's approval. However, the act did not cancel the 1933, 1950, 1970, and 1971 national emergency proclamations because these were issued by the President pursuant to his Article II constitutional authority. Nevertheless, it did render them ineffective by returning to dormancy the statutory authorities they had activated, thereby necessitating a new declaration to activate standby statutory emergency authorities.
Title II provided a procedure for future declarations of national emergency by the President and prescribed arrangements for their congressional regulation. The statute established an exclusive means for declaring a national emergency. Furthermore, emergency declarations were to terminate automatically after one year unless formally continued for another year by the President, but could be terminated earlier by either the President or Congress. Originally, the prescribed method for congressional termination of a declared national emergency was a concurrent resolution adopted by both houses of Congress. This type of so-called "legislative veto" was effectively invalidated by the Supreme Court in 1983. 58 The National Emergencies Act was amended in 1985 to substitute a joint resolution as the vehicle for rescinding a national emergency declaration.59
When declaring a national emergency, the President must indicate, according to Title III, the powers and authorities being activated to respond to the exigency at hand. Certain presidential accountability and reporting requirements regarding national emergency declarations were specified in Title IV, and the repeal and continuation of various statutory provisions delegating emergency powers was accomplished in Title V.
Since the 1976 enactment of the National Emergencies Act, various national emergencies, identified in Table I, have been declared pursuant to its provisions. Some were subsequently revoked, while others remain operative. All declarations made pursuant to the National Emergencies Act are identified in Table I; their cancellation is noted, where appropriate; and a Code of Federal Regulations or Federal Register citation is provided to enable examination of their full text.
Table 1. Declared National Emergencies, 1976-2001
Declaration Date Title CFR Citation
E.O. 12170 11/14/79 Blocking Iranian Government Property 3 C.F.R., 1979 Comp., pp. 457-458. E.O. 12211 04/17/80 Further Prohibitions on Transactions with Iran 3 C.F.R., 1980 Comp., pp. 253-255. E.O. 12444 a 10/14/83 Continuation of Export Control Regulations 3 C.F.R., 1983 Comp., pp. 214-215. E.O. 12470 b 03/30/84 Continuation of Export Control Regulations 3 C.F.R., 1984 Comp., pp. 168-169. E.O. 12513 c 05/01/85 Prohibiting Trade and Certain Other Transactions Involving Nicaragua 3 C.F.R., 1985 Comp., p. 342. E.O. 12532 d 09/09/85 Prohibiting Trade and Certain Other Transactions Involving South Africa 3 C.F.R., 1985 Comp., pp. 387-391. E.O. 12543 01/07/86 Prohibiting Trade and Certain Transactions Involving Libya 3 C.F.R., 1986 Comp., pp. 181-182. E.O. 12635 e 04/08/88 Prohibiting Certain Transactions with Respect to Panama 3 C.F.R., 1988 Comp., pp. 563-564. E.O. 12722 08/02/90 Blocking Iraqi Government Property and Prohibiting Transactions with Iraq 3 C.F.R., 1990 Comp., pp. 294-295. E.O. 12730 f 09/30/90 Continuation of Export Control Regulations 3 C.F.R., 1990 Comp., pp. 305-306. E.O. 12735 g 11/16/90 Chemical and Biological Weapons Proliferation 3 C.F.R., 1990 Comp., pp. 313-316. E.O. 12775 h 10/04/91 Prohibiting Certain Transactions with Respect to Haiti 3 C.F.R., 1991 Comp., pp. 349-350. E.O. 12808 05/30/92 Blocking "Yugoslav Government" Property and Property of the Governments of Serbia and Montenegro 3 C.F.R., 1992 Comp., pp. 305-306. E.O. 12865 09/26/93 Prohibiting Certain Transactions Involving UNITA 3 C.F.R., 1993 Comp., pp. 636-638. E.O. 12868 i 09/30/93 Restricting the Participation by United States Persons in Weapons Proliferation Activities 3 C.F.R., 1993 Comp., pp. 650-651. E.O. 12923 j 06/30/94 Continuation of Export Control Regulations 3 C.F.R., 1994 Comp., pp. 916-917. E.O. 12924 k 08/19/94 Continuation of Export Control Regulations 3 C.F.R., 1994 Comp., pp. 917-919. E.O. 12930 l 09/29/94 Measures to Restrict the Participation by United States Persons in Weapons Proliferation Activities 3 C.F.R., 1994 Comp., pp. 924-925 E.O. 12934 10/25/94 Blocking Property and Additional Measures With Respect to the Bosnian Serb-Controlled Areas of the Republic of Bosnia and Herzegovina 3 C.F.R., 1994 Comp., pp. 930-932. E.O. 12938 11/14/94 Proliferation of Weapons of Mass Destruction 3 C.F.R., 1994 Comp., pp. 950-954. E.O. 12947 01/23/95 Prohibiting Transactions with Terrorists Who Threaten to Disrupt the Middle East Peace Process 3 C.F.R., 1995 Comp., pp. 319-320. E.O. 12957 m 03/15/95 Prohibiting Certain Transactions with Respect to the Development of Iranian Petroleum Resources 3 C.F.R., 1995 Comp., pp. 332-333. E.O. 12978 10/21/95 Blocking Assets and Prohibiting Transactions with Significant Narcotics Traffickers 3 C.F.R., 1995 Comp., pp. 415-417. Proc. 6867 03/01/96 Regulation of the Anchorage and Movement of Vessels with Respect to Cuba 3 C.F.R., 1996 Comp., pp. 8-9. E.O. 13047 05/22/97 Prohibiting New Investment in Burma 3 C.F.R., 1997 Comp., pp. 202-204. E.O. 13067 11/03/97 Blocking Sudanese Government Property and Prohibiting Transactions with Sudan 3 C.F.R., 1997 Comp., pp. 230-231. E.O. 13088 06/09/98 Blocking Property of the Governments of the Federal Republic of Yugoslavia (Serbia and Montenegro), the Republic of Serbia, and the Republic of Montenegro, and Prohibiting New Investment in the Republic of Serbia in Response to the Situation in Kosovo 3 C.F.R., 1998 Comp., pp. 191-193. E.O. 13129 07/04/99 Blocking Property and Prohibiting Transactions with the Taliban 3 C.F.R. 1999 Comp., pp. 200-203. E.O. 13159 06/21/00 Blocking Property of the Government of the Russian Federation Relating to the Disposition of Highly Enriched Uranium Extracted from Nuclear Weapons 3 C.F.R. 2000 Comp., pp. 277-278. E.O. 13194 01/18/01 Prohibiting the Importation of Rough Diamonds from Sierra Leone 66 Fed. Reg. 7389-7390. E.O. 13222 08/17/01 Continuation of Export Control Regulations 66 Fed. Reg. 44025-44026. Proc. 7463 09/14/01 Declaration of National Emergency by Reason of Certain Terrorist Attacks 66 Fed. Reg. 48197-48199. a Revoked by E.O. 12451 of Dec. 20, 1983. b Revoked by E.O. 12525 of July 12, 1985. c Revoked by E.O. 12707 of Mar. 13, 1990. d Revoked by E.O. 12769 of July 10, 1991. e Revoked by E.O. 12710 of Apr. 5, 1990. f Revoked by E.O. 12867 of Sept. 30, 1993. g Revoked by E.O. 12938 of Nov. 11, 1994. h Revoked by E.O. 12932 of Oct. 14, 1994. i Revoked by E.O. 12930 of Sept. 29, 1994. J Revoked by E.O. 12924 of Aug. 19, 1994. k Revoked by E.O. 13206 of April 4, 2001. l Revoked by E.O. 12938 of Nov. 14, 1994. m Revoked in part by E.O. 12959 of May 6, 1995.
In its final report, issued in late May 1976, the special committee concluded "by reemphasizing that emergency laws and procedures in the United States have been neglected for too long, and that Congress must pass the National Emergencies Act to end a potentially dangerous situation."60 The panel's recommended legislation, of course, was enacted into law before the end of the year.
Other issues identified by the special committee as deserving attention in the future, however, did not fare so well. The panel, for example, was hopeful that standing committees of both houses of Congress would review statutory emergency power provisions within their respective jurisdictions with a view to the continued need for, and possible adjustment of, such authority.61 Actions in this regard probably were not as ambitious as the special committee expected. A title of the Federal Civil Defense Act of 1950, granting the President or Congress power to declare a civil defense emergency in the event an attack on the United States occurred or was anticipated, expired in June 1974 after the House Committee on Rules failed to report a measure continuing the statute.62
A provision of emergency law was refined in May 1976. Legislation was enacted granting the President the authority to order certain selected members of an armed services reserve component to active duty without a declaration of war or national emergency.63 Previously, such an activation of military reserve personnel had been limited to a "time of national emergency declared by the President" or "when otherwise authorized by law."64
Another refinement of emergency law occurred in 1977 when action was completed on the International Emergency Economic Powers Act (IEEPA).65 Reform legislation containing this statute 66 modified a provision of the Trading with the Enemy Act of 1917, authorizing the President to regulate the nation's international and domestic finance during periods of declared war or national emergency.67 The enacted bill limited the President's Trading with the Enemy Act power to regulate the country's finances to times of declared war. In IEEPA, a provision conferred authority on the Chief Executive to exercise controls over international economic transactions in the future during a declared national emergency and established procedures governing the use of this power, including close consultation with Congress when declaring a national emergency to activate IEEPA. Such a declaration would be subject to congressional regulation under the procedures of the National Emergencies Act.68
Other matters identified in the final report of the special committee for congressional scrutiny included: * investigation of emergency preparedness efforts conducted by the executive branch; * attention to congressional preparations for an emergency and continual review of emergency law; * ending open-ended grants of authority to the executive; * investigation and institution of stricter controls over delegated powers; and improving the accountability of executive decisionmaking.69 There is some public record indication that certain of these points, particularly the first and the last, have been addressed in the past two decades by congressional overseers.70
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