Aggressively Defending My Clients Since 1990


On Behalf of | Jan 12, 2019 | Firm News

What if a president, backed into a corner and facing electoral defeat or impeachment, were to declare an emergency for the sake of holding on to power?

In 1976, Congress enacted the National Emergencies Act that limited the scope of response to declared states of emergency. The act:
Revoked the powers that had been granted to the president under the four states of emergency that were still active in 1976.
Prescribed procedures for invoking any powers in the future.
Declared that states of emergency would automatically end one year after their declaration unless the president publishes a notice of renewal in the Federal Register within 90 days of the termination date. He or she must also officially notify Congress of the renewal.
Required each house of Congress meet every six months to consider a vote to end the state of emergency.

According to Home Building and Loan Association v. Blaisdell, 290 U.S. 398, 440 (1934) characterized an emergency in terms of “urgency and relative infrequency of occurrence as well as equivalence to a public calamity resulting from fire, flood, or like disaster not reasonably subject to anticipation.”

So would our laws and institutions might not save us from a presidential power grab?  Rulings such as Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579 (1952) in which the Supreme Court invalidated President Harry Truman’s assertion of assertion of “inherent” executive power to take over steel mills during the Korean War, have been the exception.  See, Maeva Marcus, Truman and the Steel Seizure Case: The Limits of Presidential Power (Constitutional Conflicts) (Duke University Press 1994).  While an exception, the case does stand for the proposition that even in times of war, the executive power is subject to judicial scrutiny.

The outer boundary of the president’s constitutional authority during emergencies remains poorly defined.  Presidential power is greatest when the president acts where Congress has failed to act indicating no legislative intent on how to act.  See, Crockett v. Reagan, 558 Supp. 893 (D.D.C. 1982), aff’d 720 F.2d 1355 (D.C. Cir. 1983); Sanchez-Espinoza v. Reagan,  568 F.Supp 596 (D.D.C. 1983) aff’d 770 F.2d202 (D.C. Cir. 1985).  This is why Pres. Bush asked Congress to pass legislation to support his Persian Gulf policy.

The high court also relied on Youngstown in Medellín v. Texas, 552 U.S. 491 (2008). In that case, President Bush had pressured the state of Texas to review the murder conviction of a Mexican citizen who had tortured and raped two teenage girls in 1993, arguing that a 2004 decision by the International Court of Justice (ICJ) required law enforcement authorities to tell the accused of his right under the Vienna Convention to notify Mexican diplomats of his detention. In a 6-to-3 decision, the Court held that ICJ rulings were not enforceable in the United States, and Bush’s actions were unconstitutional. Quoting Youngstown Sheet & Tube, Chief Justice John Roberts concluded, “The president’s authority to act, as with the exercise of any governmental power, ‘must stem either from an act of Congress or from the Constitution itself.'”

It is for this reason that it is critical for people to express their concern to Congress