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P, Presidential Emergency Powers.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 31 October 2020

Presidential Emergency Powers.

Presidential emergency powers should be distinguished into two categories, even though the boundary between them is sometimes obscure: the power to act in a crisis based entirely on the president’s own prerogative; and the power to act in accordance with laws that give the executive special powers in a declared emergency. The latter is a long-standing feature of American law; the former is, from the standpoint of constitutional theory, more problematic.

There is no provision in the text of the Constitution that the president has special power to act on his or her own discretion in an emergency. It is sometimes argued that such power can be inferred from the Vesting Clause (“the executive Power shall be vested in a President of the United States of America”) and from the president’s oath of office (“I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States”)—the only oath that is constitutionally prescribed.

According to Clinton Rossiter, in his Constitutional Dictatorship (2d ed., 1963), however, the framers seem never to have considered that public officials in some future crisis might have to go outside the regular procedures for lawmaking (p. 771) and enforcement established by the Constitution. Indeed, the commitment always to govern in accordance with the laws is underlined by the admonition in Article II, section 3, that the president “shall take Care that the Laws be faithfully executed.” The view that the Constitution is equal to any emergency is set forth in The *Federalist, nos. 23 and 28, among others.

On the other hand, the philosophical tradition behind the idea of government by consent and by law has acknowledged that republican executives must have power to act in an emergency. In his Discourses on the First Ten Books of Titus Livius, Machiavelli wrote, “Those republics which in time of danger cannot resort to a dictatorship will generally be ruined when grave occasions occur” (book 1, chap. 34). In The Second Treatise of Government (1690), John Locke noted that, because it is “impossible to foresee, and so by laws to provide for, all accidents and necessities, … therefore there is a latitude left to the executive power, to do many things … which the laws do not prescribe.” This power Locke called “prerogative”; it is the power “to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it” (Laslett, ed., 1988, p. 375).

By Locke’s definition (that is, executive action in the absence of law or against the law), prerogative has become a pattern of presidential action, even for limited periods of time, only rarely. Rossiter regarded only Abraham *Lincoln, Woodrow Wilson, and Franklin *Roosevelt as “constitutional dictators,” presidents who acted on their own discretion during crises for which the laws did not provide adequate authority.

Lincoln was the prime example. To meet the challenge of secession, he acted, before Congress convened in a special session, to suspend *habeas corpus, impose a naval blockade, and provide unappropriated funds for the purchase of military equipment. Chief Justice Roger B. *Taney, sitting alone on circuit, declared in Ex parte Merryman (1861) that only Congress had power to provide for the suspension of habeas corpus, but his decision was not enforced. In the *Prize Cases (1863), the Supreme Court by a 5-to-4 margin upheld the blockade and supported the president’s determination to preserve the Constitution, if necessary by the use of armed force and without lawful authorization, against citizens engaging in rebellion.

Once the *Civil War was over, the Supreme Court sought to restore the notion that the Constitution was “perfect,” that is, able on its own terms to meet any emergency. In Ex parte *Milligan (1866), the Court unanimously voided the conviction of a civilian by a military tribunal. In his opinion (representing the views of five justices), Justice David *Davis wrote, “The Constitution of the United States is a law for rulers and people, equally in war and in peace. ... [T]he government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence” (p. 295). In the twentieth century *Duncan v. Kahanamoku (1946), holding the wartime imposition of martial law in Hawaii unconstitutional, was a similar effort to restore constitutional protections after fighting stopped (see military trials and martial law). The same view was expressed even more emphatically by Chief Justice Charles Evans *Hughes, in *Home Building and Loan Association v. Blaisdell (1934): “The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government … were determined in the light of emergency and they are not altered by emergency” (p. 425).

The “perfection” of the Constitution was again sorely tested during the Great Depression of the 1930s. On the day following his inauguration, President Franklin Delano Roosevelt declared a national emergency, decreed a “bank holiday” (thereby preventing people from withdrawing deposits or cashing checks), forbade the export of gold and silver, and prohibited transactions in foreign exchange. For authority he cited the Trading with the Enemy Act of 1917, empowering the president to “investigate, regulate, or prohibit, under such rules and regulations as he may prescribe, … any transactions in foreign exchange and the export, hoarding, melting, or earmarkings of gold or silver coin or bullion or currency.” This statute had been passed as a wartime measure. On the advice of his attorney general-designate Thomas Walsh, Roosevelt based his actions on this dormant statute, rather than on his constitutional office and oath. Either way, the president’s actions went beyond any precedent save Lincoln’s and took the government, for the first time in peacetime, into the realm where constitutional legitimacy is maintained, if at all, by statutes that delegate discretion to the executive.

Another severe test of the constitutional basis of presidential emergency powers came in 1952 when President Harry S. Truman seized the steel mills. The Court, finding no basis for the president’s action either in the Constitution or in statutes, ordered him to return the mills to their owners (*Youngstown Sheet & Tube Co. v. Sawyer, 1952).

In a concurring opinion, Justice Robert *Jackson classified the constitutional authority of the president in a situation he or she deems to be an emergency. If he can find legislation authorizing his action, his powers are virtually unassailable. If he acts in the absence of a statute, he must rely on his own independent powers. In that event his authority “is likely to depend on the imperatives (p. 772) of events and contemporary imponderables rather than abstract theories of law” (p. 637). But if he takes action incompatible with the expressed or implied will of Congress, “his power is at its lowest ebb,” wrote Jackson. The Court could sustain his action “only by disabling the Congress from acting upon the subject” (pp. 637–638).

Jackson thought Truman’s seizure of the steel mills fell into the third category, and he concurred in the Court’s decision not to permit it. He went on to note, however, that the preservation of the balance ordained by the Constitution depended in part on the willingness of Congress to meet the challenges presented by events. Control over emergency powers ought to be lodged elsewhere than in the executive who exercises them, he wrote, but if Congress refuses to respond adequately to crises, government by law cannot survive. Quoting a maxim attributed to Napoleon (“The tools belong to the man who can use them”), Jackson warned that “only Congress itself can prevent power from slipping through its fingers” (p. 654).

The seizure of the mills “represents an exercise of authority without law,” wrote Jackson, and “men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations” (p. 655).

The other sources of presidential emergency powers are statutes that grant power to be exercised in the event of a declared emergency. Normally it is the executive who discerns and declares an emergency. When the executive does, he or she quickens many powers. According to a report issued by the Senate Special Committee on National Emergencies and Delegated Emergency Powers in 1973, there were at that time 470 provisions of federal law that delegated powers to the president in the event of a declared emergency. (Some of them contained *legislative vetoes, a device declared unconstitutional in *Immigration and Naturalization Service [INS] v. Chadha, 1983. The status of powers linked to legislative vetoes is not clear in the wake of this decision.)

In the mid-1970s, Congress became concerned about the possible abuse of these powers, especially because some declarations of emergency contain no termination date. In fact, the Senate study found that the nation had legally been in a continuous state of emergency since Roosevelt’s declaration of 1933.

To correct this situation, Congress in 1976 passed the National Emergencies Act, which declared that any and all existing states of emergency would be terminated two years from the bill’s enactment and that future presidential declarations would be subject to congressional review every six months. An example of the use of presidential emergency powers since the enactment of this statute came when President Jimmy Carter in November 1979 declared that the taking of American hostages in Iran created a national emergency and froze Iranian assets held in America. In January 1980, at the end of his term, he reached an agreement with the government of Iran to release the hostages in exchange for the transfer of the frozen assets to Iran and the extinguishing of any American claims to those assets. The Supreme Court, in *Dames & Moore v. Regan (1981), found statutory authority for the transfer of the assets, but for the extinguishing of claims, the Court relied on “the general tenor of Congress’ legislation in this area,” which, it said, could be viewed as an invitation to exercise independent presidential authority (p. 678).

See also foreign affairs and foreign policy; inherent powers; separation of powers; war powers.

Louis Fisher, Constitutional Conflicts between Congress and the President (1985). Christopher H. Pyle and Richard Pious, The President, Congress, and the Constitution (1984). U.S. Congress, The National Emergencies Act (Public Law 94–412). Source Book: Legislative History, Texts, and Other Documents (1976).

Donald L. Robinson