National Emergency Powers
Prepared for Members and Committees of Congress
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 200 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.
Indeed, both the judiciary and Congress, as co-equal branches, can restrain the executive
regarding emergency powers. So can public opinion. Furthermore, 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 declare formally 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, which is updated as events require.
Background and History..................................................................................................................1
The Emergency Concept.................................................................................................................3
Law and Practice.............................................................................................................................4
The National Emergencies Act........................................................................................................9
Overvi ew ....................................................................................................................... ................ 15
National Emergency Powers: A Selected Bibliography...............................................................16
Articles .................................................................................................................................... 16
Books ...................................................................................................................................... 17
Docume nts ...................................................................................................................... ........ 17
Table 1. Declared National Emergencies, 1976-2007....................................................................11
Author Contact Information..........................................................................................................18
ederal law provides a variety of powers for the President to use in response to crisis,
exigency, or emergency circumstances threatening the nation. Moreover, they are not
limited to military or war situations. Some of these authorities, deriving from the F
Constitution or statutory law, are continuously available to the President with little or no
qualification. Others—statutory delegations from Congress—exist on a stand-by basis and remain
dormant until the President formally declares a national emergency. These delegations or grants
of power authorize the President to meet the problems of governing effectively in times of crisis.
Under the powers delegated by such statutes, 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. Furthermore, Congress may modify, rescind, or render dormant such delegated
Until the crisis of World War I, Presidents utilized emergency powers at their own discretion.
Proclamations announced the exercise of exigency authority. However, during World War I and
thereafter, Chief Executives had available to them a growing body of standby emergency
authority which became operative upon the issuance of a proclamation declaring a condition of
national emergency. Sometimes such proclamations confined the matter of crisis to a specific
policy sphere, and sometimes they placed no limitation whatsoever on the pronouncement. These
activations of stand-by emergency authority remained acceptable practice until the era of the
Vietnam war. In 1976, Congress curtailed this practice with the passage of the National
The exercise of emergency powers had long been a concern of the classical political theorists,
including the eighteenth-century English philosopher John Locke, who had a strong influence
upon the Founding Fathers in the United States. A preeminent exponent of a government of laws
and not of men, Locke argued that occasions may arise when the executive must exert a broad
discretion in meeting special exigencies or “emergencies” for which the legislative power
provided no relief or existing law granted no necessary remedy. He did not regard this prerogative
as limited to wartime, or even to situations of great urgency. It was sufficient if the “public good” 1
might be advanced by its exercise.
Emergency powers were first expressed prior to the actual founding of the Republic. Between
first expressions of emergency authority. These instruments dealt almost exclusively with the
prosecution of the Revolutionary War.
1 Thomas I. Cook, ed., Two Treatises of Government, by John Locke (New York: Hafner, 1947), pp. 203-207; Edward
S. Corwin, The President: Office and Powers, 1787-1957, fourth revised edition (New York: New York University
Press, 1957), pp. 147-148.
2 See J. Reuben Clark, Jr., comp., Emergency Legislation Passed Prior to December 1917 Dealing with the Control
and Taking of Private Property for the Public Use, Benefit, or Welfare, Presidential Proclamations and Executive
Orders Thereunder, to and Including January 31, 1918, to Which Is Added a Reprint of Analogous Legislation Since
1775 (Washington: GPO, 1918), pp. 201-228.
At the Constitutional Convention of 1787, emergency powers, as such, failed to attract much
attention during the course of debate over the charter for the new government. It may be argued,
however, that the granting of emergency powers by Congress is implicit in its Article I, section 8
authority to “provide for the common Defense and general Welfare,” the commerce clause, its
war, armed forces, and militia powers, and the “necessary and proper” clause empowering it to
make such laws as are required to fulfill the executions of “the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the United States, or in any Department
or Officer thereof.”
There is a tradition of constitutional interpretation that has resulted in so-called implied powers,
which may be invoked in order to respond to an emergency situation. Locke seems to have
anticipated this practice. Furthermore, Presidents have occasionally taken an emergency action
which they assumed to be constitutionally permissible. Thus, in the American governmental
experience, the exercise of emergency powers has been somewhat dependent upon the Chief
Executive’s view of the presidential office.
Perhaps the President who most clearly articulated a view of his office in conformity with the
Lockean position was Theodore Roosevelt. Describing what came to be called the “stewardship”
theory of the presidency, Roosevelt wrote of his “insistence upon the theory that the executive
power was limited only by specific restrictions and prohibitions appearing in the Constitution or
imposed by the Congress under its constitutional powers.” It was his view “that every executive
officer, and above all every executive officer in high position, was a steward of the people,” and
he “declined to adopt the view that what was imperatively necessary for the Nation could not be
done by the President unless he could find some specific authorization to do it.” Indeed, it was
Roosevelt’s belief that, for the President, “it was not only his right but his duty to do anything that
the needs of the Nation demanded unless such action was forbidden by the Constitution or by the 3
Opposed to this view of the presidency was Roosevelt’s former Secretary of War, personal choice
for, and actual successor as Chief Executive, William Howard Taft. He viewed the presidential
office in more limited terms, writing “that the President can exercise no power which cannot be
fairly and reasonably traced to some specific grant of power or justly implied and included within
such express grant as proper and necessary to its exercise.” In his view, such a “specific grant
must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof.
There is,” Taft concluded, “no undefined residuum of power which he can exercise because it 4
seems to him to be in the public interest.... ”
Between these two views of the presidency lie various gradations of opinion, resulting in perhaps
as many conceptions of the office as there have been holders. One authority has summed up the
situation in the following words:
Emergency powers are not solely derived from legal sources. The extent of their invocation
and use is also contingent upon the personal conception which the incumbent of the
Presidential office has of the Presidency and the premises upon which he interprets his legal
3 Theodore Roosevelt, An Autobiography (New York: Macmillan, 1913), pp. 388-389.
4 William Howard Taft, Our Chief Magistrate and His Powers (New York: Columbia University Press, 1916), pp. 139-
140; for a direct response to Theodore Roosevelt’s expression of presidential power, see William Howard Taft, The
Presidency (New York, Charles Scribner’s Sons, 1916), pp. 125-130.
powers. In the last analysis, the authority of a President is largely determined by the 5
Finally, apart from the Constitution, but resulting from its prescribed procedures, there are
statutory grants of power for emergency conditions. The President is authorized by Congress to
take some special or extraordinary action, ostensibly to meet the problems of governing
effectively in times of exigency. Sometimes these laws are only of temporary duration. The
Economic Stabilization Act of 1970, for example, allowed the President to impose certain wage 6
and price controls for about three years before it expired automatically in 1974. The statute gave
the President emergency authority to address a crisis in the nation’s economy.
Of course, many of these laws are continuously maintained or permanently available for the
President’s ready use in responding to an emergency. The Defense Production Act, originally
adopted in 1950 to prioritize and regulate the manufacture of military material, is exemplary of 7
this type of statute.
Finally, there are various stand-by laws that convey special emergency powers once the President
formally declares a national emergency activating them. In 1973, a Senate special committee
studying emergency powers published a compilation identifying some 470 provisions of federal 8
law delegating to the executive extraordinary authority in time of national emergency. The vast
majority of them are of the stand-by kind—dormant until activated by the President. However,
formal procedures for invoking these authorities, accounting for their use, and regulating their
activation and application were established a while ago by the National Emergencies Act of 9
Relying upon constitutional authority or congressional delegations made at various times over the
past 200 years, the President of the United States may exercise certain powers in the event that
the continued existence of the nation is threatened by crisis, exigency, or emergency
circumstances. What is a national emergency?
In the simplest understanding of the term, the dictionary defines an emergency as “an unforeseen 10
combination of circumstances or the resulting state that calls for immediate action.” In the midst
of the crisis of the Great Depression, a 1934 Supreme Court majority opinion characterized an
emergency in terms of urgency and relative infrequency of occurrence as well as equivalence to a 11
public calamity resulting from fire, flood, or like disaster not reasonably subject to anticipation.
An eminent constitutional scholar, the late Edward S. Corwin, explained emergency conditions as
being those “which have not attained enough of stability or recurrency to admit of their being
5 Albert L. Sturm, “Emergencies and the Presidency,” Journal of Politics, vol. 11, February 1949, pp. 125-126.
6 See 84 Stat. 799-800, 1468; 85 Stat. 13, 38, 743-755; and 87 Stat. 27-29.
7 See 64 Stat. 798; 50 U.S.C. App. 2061 et seq. (1994).
8 U.S. Congress, Senate Special Committee on the Termination of the National Emergency, Emergency Powers
Statutes, 93rd Cong., 1st sess., S.Rept. 93-549 (Washington: GPO, 1973).
9 90 Stat. 1255; 50 U.S.C. 1601-1651.
10 Webster’s New Collegiate Dictionary (Springfield, MA: G & C Merriam, 1974), p. 372.
11 Home Building and Loan Association v. Blaisdell, 290 U.S. 398, 440 (1934).
dealt with according to rule.”12 During congressional committee hearings on emergency powers
in 1973, a political scientist described an emergency in the following terms: “It denotes the
existence of conditions of varying nature, intensity and duration, which are perceived to threaten 13
life or well-being beyond tolerable limits.” Corwin also indicated it “connotes the existence of
conditions suddenly intensifying the degree of existing danger to life or well-being beyond that 14
which is accepted as normal.”
There are perhaps at least four aspects of an emergency condition. The first is its temporal
character: an emergency is sudden, unforeseen, and of unknown duration. The second is its
potential gravity: an emergency is dangerous and threatening to life and well-being. The third, in
terms of governmental role and authority, is the matter of perception: who discerns this
phenomenon? The Constitution may be guiding on this question, but not always conclusive.
Fourth, there is the element of response: by definition, an emergency requires immediate action,
but is, as well, unanticipated and, therefore, as Corwin notes, cannot always be “dealt with 15
according to rule.” From these simple factors arise the dynamics of national emergency powers.
These dynamics can be seen in the history of the exercise of emergency powers.
During the summer of 1792, residents of western Pennsylvania, Virginia, and the Carolinas began
forcefully opposing the collection of a federal excise tax on whiskey. Anticipating rebellious
activity, Congress enacted legislation providing for the calling forth of the militia to suppress 16
insurrections and repel invasions. Section 3 of this statute required that a presidential 17
proclamation be issued to warn insurgents to cease their activity. If hostilities persisted, the
militia could be dispatched. On August 17, 1794, President Washington issued such a
proclamation. The insurgency continued. The President then took command of the forces 18
organized to put down the rebellion.
Here was the beginning of a pattern of policy expression and implementation regarding
emergency powers. Congress legislated extraordinary or special authority for discretionary use by
the President in a time of emergency. In issuing a proclamation, the Chief Executive notified
Congress that he was making use of this power and also apprised other affected parties of his
12 Edward S. Corwin, The President: Office and Powers, 1787-1957, p. 3.
13 U.S. Congress, Senate Special Committee on the Termination of the National Emergency, National Emergency,
hearings, 93rd Cong., 1st sess., April 11-12, 1973 (Washington: GPO, 1973), p. 277.
14 Ibid., p. 279.
15 While some might argue that the concept of emergency powers can be extended to embrace authority exercised in
response to circumstances of natural disaster, this dimension is not within the scope of this report. Various federal
response arrangements and programs for dealing with natural disasters have been established and administered with no
potential or actual disruption of constitutional arrangements. With regard to Corwin’s characterization of emergency
conditions, these long-standing arrangements and programs suggest that natural disasters do “admit of their being dealt
with according to rule.”
16 1 Stat. 264-265.
17 This authority may presently be found at 10 U.S.C. 334.
18 See James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents, vol. 1 (New York:
Bureau of National Literature, 1897), pp. 149-154.
Over the next 100 years, Congress enacted various permanent and standby laws for responding
largely to military, economic, and labor emergencies. During this span of years, however, the
exercise of emergency powers by President Abraham Lincoln brought the first great dispute over
the authority and discretion of the Chief Executive to engage in emergency actions.
By the time of Lincoln’s inauguration (March 4, 1861), seven states of the lower South had
announced their secession from the Union; the Confederate provisional government had been
established (February 4, 1861); Jefferson Davis had been elected (February 9, 1861) and installed
as president of the confederacy (February 18, 1861); and an army was being mobilized by the
secessionists. Lincoln had a little over two months to consider his course of action.
When the new President assumed office, Congress was not in session. For reasons of his own,
Lincoln delayed calling a special meeting of the legislature, but soon ventured into its
constitutionally designated policy sphere. On April 19, he issued a proclamation establishing a 19
blockade on the ports of the secessionist states, “a measure hitherto regarded as contrary to both
the Constitution and the law of nations except when the government was embroiled in a declared, 20
foreign war.” Congress, of course, had not been given an opportunity to consider a declaration
The next day, the President ordered the addition of 19 vessels to the navy “for purposes of public 21
defense.” A short time later, the blockade was extended to the ports of Virginia and North 22
By a proclamation of May 3, Lincoln ordered that the regular army be enlarged by 22,714 men,
that navy personnel be increased by 18,000, and that 42,032 volunteers be accommodated for 23
three-year terms of service. Such a directive, of course, antagonized many Representatives and
Senators, because Congress is specifically authorized by Article I, Section 8, of the Constitution
“to raise and support armies.”
In his July message to the newly assembled Congress, Lincoln suggested that, while his actions
with regard to the expansion of the armed forces might be legally suspect, “[t]hese measures,
whether strictly legal or not, were ventured upon under what appeared to be a popular and a
public necessity, trusting then, as now, that Congress would readily ratify them. It is believed,” he 24
wrote, “that nothing has been done beyond the constitutional competency of Congress.”
Indeed, Congress subsequently did legislatively authorize, and thereby approve, the President’s
actions regarding his increasing armed forces personnel, and would do the same later concerning
some other questionable emergency actions. In the case of Lincoln, the opinion of scholars and
experts is “that neither Congress nor the Supreme Court exercised any effective restraint upon the 25
President.” The emergency actions of the Chief Executive were either unchallenged or approved
19 Ibid., vol. 7, pp. 3215-3216.
20 Clinton L. Rossiter, Constitutional Dictatorship (New York: Harcourt, Brace, and World, 1963), p. 225.
22 See James D. Richardson, comp., A Compilation of the Messages and Papers of the Presidents, vol. 7, p. 3216.
23 Ibid., pp. 3216-3217.
24 Ibid., p. 3225.
25 James G. Randall, Constitutional Problems Under Lincoln (Urbana, IL: University of Illinois Press, 1951); also see
Wilfred E. Binkley, President and Congress (New York: Alfred A. Knopf, 1947), pp. 124-127; Clinton L. Rossiter,
by Congress, and were either accepted or, because of almost no opportunity to render judgment,
went largely without notice by the Supreme Court. The President made a quick response to the
emergency at hand, a response which Congress or the courts might have rejected in law, but
which, nonetheless, had been made in fact and with some degree of popular approval. Similar
controversy would arise concerning the emergency actions of Presidents Woodrow Wilson and
Franklin D. Roosevelt. Both men exercised extensive emergency powers with regard to world
hostilities, and Roosevelt also used emergency authority to deal with the Great Depression. Their
emergency actions, however, were largely supported by statutory delegations and a high degree of
approval on the part of both Congress and the public.
Furthermore, during 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 26
issued by President Wilson on February 5, 1917. Promulgated on the authority of a statute
establishing the United States Shipping Board, the proclamation concerned water transportation 27
policy. It was statutorily terminated, along with a variety of other wartime measures, on March 28
President Franklin D. Roosevelt issued the next national emergency proclamation some 48 hours 29
after assuming office. Proclaimed March 6, 1933, on the somewhat questionable authority of the 30
Trading with the Enemy Act of 1917, 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 31
Banking Act on March 9. 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 32
with new banking policy.
Next, on September 8, 1939, President Roosevelt promulgated a proclamation of “limited” 33
national emergency, though the qualifying term had no meaningful legal significance. Almost 34
two years later, on May 27, 1941, he issued a proclamation of “unlimited” national emergency.
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.
Constitutional Dictatorship, pp. 233-234; and Woodrow Wilson, Constitutional Government in the United States (New
York: Columbia University Press, 1907), p. 58.
26 39 Stat. 1814.
27 39 Stat. 728.
28 41 Stat. 1359.
29 48 Stat. 1689.
30 40 Stat. 411.
31 48 Stat. 1.
32 48 Stat. 1691.
33 54 Stat. 2643.
34 55 Stat. 1647.
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 3536
rescinded. Then, in 1951, Congress terminated the declaration of war against Germany. 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 37
temporarily maintained this emergency authority. It was subsequently supplanted by the
Emergency Powers Continuation Act, which kept selected emergency delegations in force until 38
August 1953. By proclamation in April 1952, President Harry S. Truman terminated the 1939
and 1941 national emergency declarations, leaving operative only those emergency authorities 39
continued by statutory specification.
President Truman’s 1952 termination, however, specifically exempted a December 1950 40
proclamation of national emergency he had issued in response to hostilities in Korea.
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 41
declared a national emergency in March 1970, thereby gaining permission to use units of the 42
Ready Reserve to assist in moving the mail. 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 43
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 44
terminate the declared national emergency.
35 61 Stat. 449.
36 65 Stat. 451.
37 66 Stat. 54; extended at 66 Stat. 96, 137, and 296.
38 66 Stat. 330; extended at 67 Stat. 18 and 131.
39 66 Stat. c31.
40 64 Stat. A454.
41 84 Stat. 2222.
42 See 10 U.S.C. 673 (1970).
43 85 Stat. 926.
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 45
With the convening of the 93rd 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. th
S.Res. 370. Senator Church and Senator Mathias co-chaired the panel.
The Special Committee on National Emergencies and Delegated Emergency Powers produced 47
various studies during its existence. 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
45 U.S. Congress, House Committee on the Judiciary, National Emergencies Act, hearings, 94th Cong., 1st sess., March
6, 13, 19, and April 9, 1975 (Washington: GPO, 1975), p. 20.
46 Other members of the Special Committee included Senators Clifford P. Case, Clifford P. Hansen, Philip A. Hart,
James B. Pearson, Claiborne Pell, and Adlai E. Stevenson III.
47 See U.S. Congress, Senate Special Committee on National Emergencies and Delegated Emergency Powers, A Brief
History of Emergency Powers in the United States, committee print, 93rd Cong., 2nd sess. (Washington: GPO, 1974);
U.S. Congress, Senate Special Committee on National Emergencies and Delegated Emergency Powers, A rdnd
Recommended National Emergencies Act, 93 Cong., 2 sess., S.Rept. 93-1170 (Washington: GPO, 1974); U.S.
Congress, Senate Special Committee on National Emergencies and Delegated Emergency Powers, Executive Orders in rdnd
Times of War and National Emergency, committee print, 93 Cong., 2 sess. (Washington: GPO, 1974); U.S.
Congress, Senate Special Committee on National Emergencies and Delegated Emergency Powers, Executive Replies, 3 rdnd
parts, committee print, 93 Cong., 2 sess. (Washington: GPO, 1974); U.S. Congress, Senate Special Committee on
National Emergencies and Delegated Emergency Powers, National Emergencies and Delegated Emergency Powers, thnd
94 Cong., 2 sess., S.Rept. 94-922 (Washington: GPO, 1976); U.S. Congress, Senate Special Committee on the rdst
Termination of the National Emergency, Emergency Powers Statutes, 93 Cong., 1 sess., S.Rept. 93-549
(Washington: GPO, 1973); U.S. Congress, Senate Special Committee on the Termination of the National Emergency, rdst
National Emergency, 3 parts, hearings, 93 Cong., 1 sess., April 11-12, July 24, and November 28, 1973
(Washington: GPO, 1973).
began preparing a report offering its findings and recommendations regarding the state of national
emergency powers in the nation.
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 48
Government Operations on September 30 without public hearings or amendment. The bill was 49
subsequently discussed on the Senate floor on October 7, when it was amended and passed.
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 rd
to be considered on the House floor before the final adjournment of the 93 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. House hearings
occurred in March and April before the Subcommittee on Administrative Law and Governmental 50
Relations of the Committee on the Judiciary. The bill was subsequently marked-up and, on April
Committee on the Judiciary, on a voice vote, reported the bill with technical amendments.
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 52
it was referred to the Committee on Government Operations.
The Senate Committee on Government Operations held a hearing on H.R. 3884 on February 25, 53
1976, The bill was subsequently reported on August 26 with one substantive and several
48 See U.S. Congress, Senate Committee on Government Operations, National Emergencies Act, 93rd Cong., 2nd sess.,
S.Rept. 93-1193 (Washington: GPO, 1974).
49 See Congressional Record, vol. 120, October 7, 1974, pp. 34011-34022.
50 See U.S. Congress, House Committee on the Judiciary, National Emergencies Act, hearings, 94th Cong., 1st sess.,
March 6, 13, 19, and April 9, 1975 (Washington: GPO, 1975).
51 U.S. Congress, House Committee on the Judiciary, National Emergencies, 94th Cong., 1st sess., H.Rept. 94-238
(Washington: GPO, 1975).
52 Congressional Record, vol. 121, September 4, 1975, pp. 27631-27647; Ibid., September 5, 1975, p. 27745.
53 See U.S. Congress, Senate Committee on Government Operations, National Emergencies Act, hearing, 94th Cong.,
technical amendments.54 The following day, the amended bill was passed and returned to the 5556
House. On August 31, the House agreed to the Senate amendments, clearing the proposal for 57
President Gerald Ford’s signature on September 14.
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 58
veto” was effectively invalidated by the Supreme Court in 1983. The National Emergencies Act
was amended in 1985 to substitute a joint resolution as the vehicle for rescinding a national 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 1, have been declared pursuant to its provisions. Some were subsequently
revoked, while others remain operative. All original declarations made pursuant to the National
Emergencies Act are identified in Table 1. Unless otherwise indicated (in italic), their status is
operational. A Code of Federal Regulations or Federal Register citation is provided to enable
examination of their full text.
2nd sess., February 25, 1976 (Washington: GPO, 1976).
54 See U.S. Congress, Senate Committee on Government Operations, National Emergencies Act, 94th Cong., 2nd sess.,
S.Rept. 94-1168 (Washington: GPO, 1976).
55 See Congressional Record, vol. 122, August 27, 1976, pp. 28224-28228.
56 Ibid., August 31, 1976, p. 28466.
57 90 Stat. 1255; 50 U.S.C. 1601-1651 (1988); see U.S. Congress, Senate Committee on Government Operations and
Special Committee on National Emergencies and Delegated Emergency Powers, The National Emergencies Act (P.L. thnd
94-412). Source Book: Legislative History, Texts, and Other Documents, committee print, 94 Cong., 2 sess.
(Washington: GPO, 1976).
58 See Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).
59 See 99 Stat. 405, 448.
Table 1. Declared National Emergencies, 1976-2007
Declaration Date Title Citation/Status
E.O. 12170 11/14/79 Blocking Iranian Government Property 3 C.F.R., 1979 Comp.,
E.O. 12211 04/17/80 Further Prohibitions on Transactions with Iran 3 C.F.R., 1980 Comp.,
E.O. 12444 10/14/83 Continuation of Export Control Regulations 3 C.F.R., 1983 Comp.,
pp. 214-215; revoked by
E.O. 12451 of 12/20/83.
E.O. 12470 03/30/84 Continuation of Export Control Regulations 3 C.F.R., 1984 Comp.,
pp. 168-169; revoked by
E.O. 12525 of 07/12/85.
E.O. 12513 05/01/85 Prohibiting Trade and Certain Other Transactions Involving 3 C.F.R., 1985 Comp.,
Nicaragua p. 342; revoked by E.O.
12707 of 03/13/90.
E.O. 12532 09/09/85 Prohibiting Trade and Certain Other Transactions Involving 3 C.F.R., 1985 Comp.,
South Africa pp. 387-391; revoked by
E.O. 12769 of 07/10/91.
E.O. 12543 01/07/86 Prohibiting Trade and Certain Transactions Involving Libya 3 C.F.R., 1986 Comp.,
pp. 181-182; revoked by
E.O. 13357 of 09/20/04.
E.O. 12635 04/08/88 Prohibiting Certain Transactions with Respect to Panama 3 C.F.R., 1988 Comp.,
pp. 563-564; revoked by
E.O. 12710 of 04/05/90.
E.O. 12722 08/02/90 Blocking Iraqi Government Property and Prohibiting 3 C.F.R., 1990 Comp.,
Transactions with Iraq pp. 294-295; revoked by
E.O. 13350 of 07/29/04.
E.O. 12730 09/30/90 Continuation of Export Control Regulations 3 C.F.R., 1990 Comp.,
pp. 305-306; revoked by
E.O. 12867 of 09/30/93.
E.O. 12735 11/16/90 Chemical and Biological Weapons Proliferation 3 C.F.R., 1990 Comp.,
pp. 313-316; revoked by
E.O. 12938 of 11/11/94.
E.O. 12775 10/04/91 Prohibiting Certain Transactions with Respect to Haiti 3 C.F.R., 1991 Comp.,
pp. 349-350; revoked by
E.O. 12932 of 10/14/94.
E.O. 12808 05/30/92 Blocking “Yugoslav Government” Property and Property of 3 C.F.R., 1992 Comp.,
the Governments of Serbia and Montenegro pp. 305-306; revoked by
E.O. 13304 of 05/28/03.
E.O. 12865 09/26/93 Prohibiting Certain Transactions Involving UNITA 3 C.F.R., 1993 Comp.,
pp. 636-638; revoked by
E.O. 13298 of 05/06/03.
E.O. 12868 09/30/93 Restricting the Participation by United States Persons in 3 C.F.R., 1993 Comp.,
Weapons Proliferation Activities pp. 650-651; revoked by
E.O. 12930 of 09/29/94.
E.O. 12923 06/30/94 Continuation of Export Control Regulations 3 C.F.R., 1994 Comp.,
pp. 916-917; revoked by
E.O. 12924 of 08/19/94.
Declaration Date Title Citation/Status
E.O. 12924 08/19/94 Continuation of Export Control Regulations 3 C.F.R., 1994 Comp.,
pp. 917-919; revoked by
E.O. 13206 of 04/04/01.
E.O. 12930 09/29/94 Measures to Restrict the Participation by United States 3 C.F.R., 1994 Comp.,
Persons in Weapons Proliferation Activities pp. 924-925; revoked by
E.O. 12938 of 11/14/94.
E.O. 12934 10/25/94 Blocking Property and Additional Measures With Respect to 3 C.F.R., 1994 Comp.,
the Bosnian Serb-Controlled Areas of the Republic of Bosnia pp. 930-932; revoked by
and Herzegovina E.O. 13304 of 05/28/03.
E.O. 12938 11/14/94 Proliferation of Weapons of Mass Destruction 3 C.F.R., 1994 Comp.,
E.O. 12947 01/23/95 Prohibiting Transactions with Terrorists Who Threaten to 3 C.F.R., 1995 Comp.,
Disrupt the Middle East Peace Process pp. 319-320.
E.O. 12957 03/15/95 Prohibiting Certain Transactions with Respect to the 3 C.F.R., 1995 Comp.,
Development of Iranian Petroleum Resources pp. 332-333; revoked in
part by E.O. 12959 of
E.O. 12978 10/21/95 Blocking Assets and Prohibiting Transactions with Significant 3 C.F.R., 1995 Comp.,
Narcotics Traffickers pp. 415-417.
Proc. 6867 03/01/96 Regulation of the Anchorage and Movement of Vessels with 3 C.F.R., 1996 Comp.,
Respect to Cuba pp. 8-9.
E.O. 13047 05/22/97 Prohibiting New Investment in Burma 3 C.F.R., 1997 Comp.,
pp. 202-204; revoked in
part by E.O. 13310 of
E.O. 13067 11/03/97 Blocking Sudanese Government Property and Prohibiting 3 C.F.R., 1997 Comp.,
Transactions with Sudan pp. 230-231; expanded
by E.O. 13400 of
E.O. 13088 06/09/98 Blocking Property of the Governments of the Federal 3 C.F.R., 1998 Comp.,
Republic of Yugoslavia (Serbia and Montenegro), the pp. 191-193; revoked by
Republic of Serbia, and the Republic of Montenegro, and E.O. 13304 of 05/28/03.
Prohibiting New Investment in the Republic of Serbia in
Response to the Situation in Kosovo
E.O. 13129 07/04/99 Blocking Property and Prohibiting Transactions with the 3 C.F.R. 1999 Comp.,
Taliban pp. 200-203; revoked by
E.O. 13268 of 07/02/02.
E.O. 13159 06/21/00 Blocking Property of the Government of the Russian 3 C.F.R. 2000 Comp.,
Federation Relating to the Disposition of Highly Enriched pp. 277-278.
Uranium Extracted from Nuclear Weapons
E.O. 13194 01/18/01 Prohibiting the Importation of Rough Diamonds from Sierra 3 C.F.R. 2001 Comp.,
Leone pp. 741-743; revoked by
E.O. 13224 of 01/15/04.
E.O. 13219 06/26/01 Blocking Property of Persons Who Threaten International 3 C.F.R. 2001 Comp.,
Stabilization Efforts in the Western Balkans pp. 778-782; revised by
E.O. 13304 of 05/28/03.
E.O. 13222 08/17/01 Continuation of Export Control Regulations 3 C.F.R. 2001 Comp.,
Declaration Date Title Citation/Status
Proc. 7463 09/14/01 Declaration of National Emergency by Reason of Certain 3 C.F.R. 2001 Comp.,
Terrorist Attacks p. 263.
E.O. 1322460 09/23/01 Blocking Property and Prohibiting Transactions with Persons 3 C.F.R. 2001 Comp.,
who Commit, Threaten to Commit, or Support Terrorism pp. 786-789
E.O. 13288 03/06/03 Blocking Property of Persons Undermining Democratic 3 C.F.R. 2003 Comp.,
Processes or Institutions in Zimbabwe pp. 186-191.
E.O. 13303 5/22/03 Protecting the Development Fund for Iraq and Certain 3 C.F.R. 2003 Comp.,
Other Property in Which Iraq has an Interest pp. 227-229; scope
expanded by E.O. 13315
E.O. 13338 05/11/04 Blocking Property of Certain Persons and Prohibiting the 3 C.F.R. 2004 Comp.,
Export of Certain Goods to Syria pp. 168-172.
E.O. 13348 07/22/04 Blocking Property of Certain Persons and Prohibiting the 3 C.F.R. 2004 Comp.,
Importation of Certain Goods from Liberia pp. 189-195.
E.O. 13396 02/07/06 Blocking Property of Certain Persons Contributing to the 3 C.F.R., 2006 Comp.,
Conflict in Côte d’Ivoire pp. 209-213.
E.O. 13405 06/16/06 Blocking Property of Certain Persons Undermining 3 C.F.R., 2006 Comp.,
Democratic Processes or Institutions in Belarus pp. 231-234.
E.O. 13413 10/27/06 Blocking Property of Certain Persons Contributing to the 3 C.F.R., 2006 Comp.,
Conflict in the Democratic Republic of the Congo pp. 247-249
E.O. 13441 08/01/07 Blocking Property of Persons Undermining the Sovereignty 72 Fed. Reg.
of Lebanon or Its Democratic Processes and Institutions 43499-43501
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 61
that Congress must pass the National Emergencies Act to end a potentially dangerous situation.”
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 62
jurisdictions with a view to the continued need for, and possible adjustment of, such authority.
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 63
60 Key portions of the order were declared unconstitutional for being impermissibly vague because they allow the
President to designate unilaterally organizations as terrorist groups and broadly prohibit association with such groups.
Humanitarian Law Project v. Department of the Treasury (D.C. C.D. Cal. No. CV 05-8047 ABC (RMCx), November
61 U.S. Congress, Senate Special Committee on National Emergencies and Delegated Emergency Powers, National
Emergencies and Delegated Emergency Powers, p. 19.
62 Ibid., p. 10.
63 See 50 U.S.C. App. 2297 (1970); U.S. Congress, House Committee on Armed Services, Extending Civil Defense
Emergency Authorities, 93rd Cong., 2nd sess., H.Rept. 93-1243 (Washington: GPO, 1974); Associated Press, “Rules
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 64
to active duty without a declaration of war or national emergency. Previously, such an activation
of military reserve personnel had been limited to a “time of national emergency declared by the 65
President” or “when otherwise authorized by law.”
Another refinement of emergency law occurred in 1977 when action was completed on the 66
International Emergency Economic Powers Act (IEEPA). Reform legislation containing this 67
statute 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 68
war or national emergency. 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 69
procedures of the National Emergencies Act.
Other matters identified in the final report of the special committee for congressional scrutiny
• investigation of emergency preparedness efforts conducted by the executive
• attention to congressional preparations for an emergency and continual review of
• 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.70
There is some public record indication that certain of these points, particularly the first and the 71
last, have been addressed in the past two decades by congressional overseers.
Panel Halts Bill on War Powers,” Washington Post, September 19, 1974, p. A5.
64 90 Stat. 517; 10 U.S.C. 12302
65 10 U.S.C. 673 (1970).
66 50 U.S.C. 1701-1706.
67 91 Stat. 1625.
68 12 U.S.C. 95a and 50 U.S.C. App. 5(b) (1976).
69 Of related interest to these statutory developments, President Ford, by a proclamation of February 19, 1976, gave
notice that E.O. 9066, providing for the internment of Japanese-Americans in certain military areas during World War
II, was canceled as of the issuance of the proclamation formally establishing the cessation of World War II on
December 31, 1946. See 3 C.F.R., 1976 Comp., pp. 8-9. Certain statutory authority relevant to this executive order,
concerning the creation of military areas and zones, was canceled by the National Emergencies Act. See 18 U.S.C.
70 See U.S. Congress, Senate Special Committee on National Emergencies and Delegated Emergency Powers, National
Emergencies and Delegated Emergency Powers, pp. 11-18.
71 See, for example, U.S. Congress, House Committee on Government Operations, Presidential Directives and Records
The development, exercise, and regulation of emergency powers, from the days of the
Continental Congress to the present, reflect at least one highly discernable trend: those authorities
available to the executive in time of national crisis or exigency have, since the time of the Lincoln
Administration, come to be increasingly rooted in statutory law. The discretion available to a
Civil War President in his exercise of emergency power has been harnessed, to a considerable
extent, in the contemporary period. Furthermore, due to greater reliance upon statutory
expression, the range of this authority has come to be more circumscribed, and the options for its
use have come to be regulated procedurally through the National Emergencies Act. Since its
enactment, however, the National Emergencies Act has not been revisited by congressional
overseers. Nonetheless, as the final report of the Senate Special Committee on National
Emergencies suggests, the prospect remains that further improvements and reforms in this policy
area might be pursued and perfected.
An anomaly in the activation of emergency powers appears to have occurred on September 8,
2005, when President George W. Bush issued a proclamation suspending certain wage
requirements of the Davis-Bacon Act in the course of the federal response to the Gulf coast 72
disaster resulting from Hurricane Katrina. Instead of following the historical pattern of declaring 73
a national emergency to activate the suspension authority, the President set out the following
rationale in the proclamation: “I find that the conditions caused by Hurricane Katrina constitute a 74
‘national emergency’ within the meaning of section 3147 of title 40, United States Code.” A
more likely course of action seemingly would have been for the President to declare a national
emergency pursuant to the National Emergencies Act and to specify that he was, accordingly,
activating the suspension authority. Although the propriety of the President’s action in this case
might have been ultimately determined in the courts, the proclamation was revoked on November
authority, in part, for his action.
Accountability Act, hearing, 100th Cong., 2nd sess., August 3, 1988 (Washington: GPO, 1989; U.S. Congress, House
Committee on Interior and Insular Affairs, Emergency Preparedness and the Licensing Process for Commercial thst
Nuclear Power Reactors, 2 parts, hearings, 98 Cong., 1 sess., April 18 and July 8, 1983 (Washington: GPO, 1985).
72 See Federal Register, vol. 70, September 13, 2005, pp. 54227-54228.
73 Currently found at 40 U.S.C. § 3147; formerly codified at 40 U.S.C. § 276a-5.
74 Federal Register, vol. 70, September 13, 2005, p. 54227.
75 Ibid., November 8, 2005, p. 67899.
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Harold C. Relyea
Specialist in American National Government