Explanation:
Summary
The President of the United States has available certain powers that may be exercised in the event
that the nation is threatened by crisis, exigency, or emergency circumstances (other than natural
disasters, war, or near-war situations). Such powers may be stated explicitly or implied by the
Constitution, assumed by the Chief Executive to be permissible constitutionally, or inferred from
or specified by statute. Through legislation, Congress has made a great many delegations of
authority in this regard over the past 230 years.
There are, however, limits and restraints upon the President in his exercise of emergency powers.
With the exception of the habeas corpus clause, the Constitution makes no allowance for the
suspension of any of its provisions during a national emergency. Disputes over the
constitutionality or legality of the exercise of emergency powers are judicially reviewable. Both
the judiciary and Congress, as co-equal branches, can restrain the executive regarding emergency
powers. So can public opinion. Since 1976, the President has been subject to certain procedural
formalities in utilizing some statutorily delegated emergency authority.
The National Emergencies Act (50 U.S.C. §§1601-1651) eliminated or modified some statutory
grants of emergency authority, required the President to formally declare the existence of a
national emergency and to specify what statutory authority activated by the declaration would be
used, and provided Congress a means to countermand the President’s declaration and the
activated authority being sought. The development of this regulatory statute and subsequent
declarations of national emergency are reviewed in this report.
On three occasions, Presidents have activated Title 10, Section 2808, of the United States Code
(10 U.S.C. §2808)—one of the standby authorities available to a President when he declares a
national emergency or subsequently issues a related executive order or proclamation. Upon being
activated, Section 2808 is notable for permitting, under certain conditions, the use of military
construction (MILCON) funds for a declared national emergency. Most recently, President
Donald J. Trump invoked Section 2808 upon declaring an emergency involving the southern
border of the United States. Congressional efforts to terminate the emergency we
