43

Is there any provision within the US Constitution whereby the President can declare a state of emergency, suspending the powers of the judiciary/congress to override executive actions.

What happened during WW2 that permitted the detention of people of Japanese descent etc?

In Britain the Defence of the Realm Act gave vast powers to the Government during war years, such that the Minister of Labour and National Service virtually had enough power to command any adult person to work anywhere.

Improve this question
6
  • 4
    I think a better question would be "why couldn't they?". It seems obvious that this has happened more than once. – user10303 Feb 6 '17 at 16:48
  • 5
    Anyone can declare a "State of Emergency." – emory Feb 7 '17 at 1:39
  • 1
    @emory I refer to a "State of Emergency" which gives a government more legal powers than it might otherwise have, such as detention without trial of certain categories of people, suspension of elections etc. – WS2 Feb 7 '17 at 7:40
  • The question isn't totally clear. A President can do anything s/he desires, with supportive Congress and Supreme Court. Since Presidential powers can be increased by Congress and the Senate approves Supreme Court appointees (of the President), and laws of Congress are 'Constitutional' (until not), what scope is intended? – user2338816 Feb 7 '17 at 8:08
  • 2
    A much better question would be "On a constitutional level which powers can the US president gain by declaring an emergency and who has to agree with it beforehand?" – Trilarion Feb 8 '17 at 7:25
93

The USA is in a state of emergency, and has been since the terrorist attacks of 9/11/2001. The state of emergency was declared by former President G. W. Bush:

Proclamation 7463—Declaration of National Emergency by Reason of Certain Terrorist Attacks

A national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States.

Now, Therefore, I, George W. Bush, President of the United States of America, by virtue of the authority vested in me as President by the Constitution and the laws of the United States, I hereby declare that the national emergency has existed since September 11, 2001, and, pursuant to the National Emergencies Act (50 U.S.C. 1601 et seq.), I intend to utilize the following statutes: sections 123, 123a, 527, 2201(c), 12006, and 12302 of title 10, United States Code, and sections 331, 359, and 367 of title 14, United States Code.

[...]

Since then it has been extended every year, the last time by President Obama.

Improve this answer
16
  • 66
    Up voted but this answer would benefit from discussion of what the emergency powers of the President entail qualitatively – user9790 Feb 5 '17 at 23:36
  • 3
    Thank you. What powers does this imply? Would it, for example, allow Trump to override a decision of the courts as regards visitors from the proscribed countries? – WS2 Feb 6 '17 at 0:35
  • 6
    You should point to the cited portions of the United States Code and say what they allow the president to do. – sabbahillel Feb 6 '17 at 1:54
  • 3
    @WS2 Generally speaking our judicial system gets the last word no matter what. Nothing can override the judicial system. It's the final check/balance. That said, he could issue another executive order with slightly different wording and get much of the same effect. – coteyr Feb 6 '17 at 13:16
  • 9
    "Nothing can override the judicial system." Impeachment, new laws, Constitutional amendments, or stuffing the SCOTUS with extra judges like FDR tried to do are all possibilities. – ceejayoz Feb 6 '17 at 15:10
29

No, there is no provision in the U.S. Constitution for the president to declare a state of emergency. The constitutional powers of the president are in Article 2, Section 2.

As noted in the current national state of emergency declaration in adjan's answer (Proclamation 7463), Title 50, Chapter 34 of the United States Code covers the current mechanism for declaring and terminating states of emergency (first introduced into law as the National Emergencies Act of 1976). Other parts of the law denote what can be done during a state of emergency; each of the sections cited in Proclamation 7463 for Titles 10 and 14 have to do with granting the president additional powers regarding personnel and resources for the military.

Since it is congressional law granting these emergency powers, congress could pass a law changing those powers. Congress also has the power to terminate a state of emergency, and is even required to conduct a review every 6 months during an emergency to consider termination (50 U.S. Code § 1622.

The internment of Japanese Americans during World War 2 was done with Executive Order 9066 by President Franklin D. Roosevelt on February 19, 1942 and by Public Law 503 signed on March 9, 1942. It is worth noting that the U.S. was under a declaration of war, not simply a state of emergency.

Improve this answer
9
  • 4
    So, just to clarify, the USA is in an extended state of emergency, but that state was no authorized by any provision of the constitution? – Mawg says reinstate Monica Feb 6 '17 at 11:14
  • 19
    @Mawg The constitution doesn't say that the president can't declare a state of emergency, either. The government does a lot of things that aren't mentioned in the constitution. – Ben Miller - Remember Monica Feb 6 '17 at 11:58
  • 5
    @WS2 At the time it was happening, the constitutionality was challenged at least three times (1, 2, 3), and each time the Supreme Court ruled that the government's actions were constitutional during war. – Ben Miller - Remember Monica Feb 6 '17 at 13:47
  • 1
    @WS2 I think it's pretty universally acknowledged that those decisions were unconstitutional, so I rather doubt they'd be used as precedent today. Even in the extremely unlikely scenario that courts upheld such an action, Congress could simply pass a new law repealing P.L. 503. It would take 2/3 of both houses of Congress to override a Presidential veto, though. Alternatively, Congress could propose an amendment which, upon ratification by 3/4 of the states, would become part of the Constitution itself. – reirab Feb 6 '17 at 23:04
  • 1
    The President cannot declare war. Only Congress. – CramerTV Feb 8 '17 at 1:50
16

All by himself? No. However, Congress has the right to suspend Habeas Corpus (the requirement that you can't arrest people without charging them with anything, which gets the court system involved), "when in Cases of Rebellion or Invasion the public Safety may require it."

Abraham Lincoln set an interesting precedent for this during the US Civil war, when he unilaterally did this, and started having political opponents arrested. Congress wasn't in session at the time, and lots of these people were attempting to take more states into the rebel camp, but some were just complaining about the suspension itself.

It was indeed an insurrection, but he wasn't Congress. The Supreme Court ruled his suspension invalid, but he just ignored them and kept doing it. Congress retroactively approved his actions, but not until the next session. So there was an entire year there where Lincoln was arguably acting as a military ruler of the country.

Improve this answer
3
  • Interesting. That makes it very similar to the way it works in Britain. In recent times the only significant use of such powers has been with the use (for a period of time) internment in Northern Ireland, and also the suspension of trial by jury in the province (due to widespread juror intimidation) in favour of trial before a judge alone (Diplock Courts). However it is now clear that the government's use of internment was the biggest recruiting sergeant the IRA ever had. I fear that the current actions by the Trump administration could be having the same effect on jihadism. – WS2 Feb 6 '17 at 20:44
  • 6
    "...where Lincoln was arguably acting as a military ruler of the country." Is there any reasonable argument that he wasn't running a military dictatorship? Just from Wikipedia's page on Ex parte Merryman, not only did the army completely ignore the entire Judicial branch, they arrested and held without charges much of a city government, a US Representative, a US Circuit Judge (for ordering a writ of HC), newspaper owners and editors (for criticizing Lincoln; publishing a book mentioning the author's illegal imprisonment)… – Kevin Feb 7 '17 at 8:07
  • 2
    @Kevin - For the most part, I think I'm with you. The argument against is: the folks arrested were almost all either working to help the Confederacy, or criticizing the arrest of those who were. Aside from that, he continued to allow Congress and the courts and the Press to do their thing, and submitted himself for re-election like any other POTUS. His opponent got a good 45% of the vote in that election, which is an amount you would not see for a political opponent under a true despotism. – T.E.D. Feb 7 '17 at 14:31
7

Is there any provision within the US Constitution whereby the President can declare a state of emergency, suspending the powers of the judiciary/congress to override executive actions.

No. There is nothing in the Constitution that empowers the President to curtail Legislative or Judicial powers. Though, sometimes appearances make it seem otherwise.

What happened during WW2 that permitted the detention of people of Japanese descent etc?

Even internment during a declared war (aside: a war is more serious than an emergency) involved the three branches of government.

  • Congress: Wrote Public Law 503 (in the opinion of many, granted the Exec overly broad powers)
  • President: Issued Executive Order 9066 (IMO, the EO took advantage of PL 503)
  • Judicial: The Supreme Court saw three cases, but internment was upheld. Supreme court basically considers constitutionality, and/or if law was followed--regardless of whether they approve of the law or not.

Internment is highly unlikely today. More laws have been passed, and a great deal of case law has emerged that would prevent wholesale actions against a target group based on a shallow discriminator.

In Britain the Defence of the Realm Act gave vast powers to the Government during war years, such that the Minister of Labour and National Service virtually had enough power to command any adult person to work anywhere.

This wouldn't work in the US, either during WWII or now, as it would be blatantly unconstitutional.

Improve this answer
3
  • 7
    "This wouldn't work in the US, either during WWII or now, as it would be blatantly unconstitutional." Well, you're right that it's blatantly unconstitutional (13th Amendment,) but it's been done anyway via the draft. Courts upheld it because they can. Unfortunately, there's no Constitutional provision to deal with situations where the courts rule something to be Constitutional when it clearly isn't. – reirab Feb 6 '17 at 22:58
  • 1
    It might be different if you had someone like Hitler breathing down your necks, with bombs falling on your cities every night, and food supplies rationed to a few ounces at every meal. . – WS2 Feb 7 '17 at 7:51
  • 1
    Well, there are appeals, though that is not strictly in the Constitution. Beyond that, there is no provision regarding "incorrect" judicial interpretation because the courts (namely the Supreme Court) are supposed to be the final interpreters of the Constitution. They are definitionally correct. – Travis Feb 7 '17 at 19:09
0

My question with this current president, and the fact that the Republican House and Senate seem intent on protecting him from scrutiny as long as they get their way, would be what is to prevent the total take over of the government by the president? In the current state of affairs we have evidence that Russia did in fact hack some of our electoral processes whether Trump knew of it or not is a question yet to be answered. He has shown evidence of intolerance at our system of governance and would clearly prefer to be more of a dictator. It does not matter what the law or the constitution says, it only matters what can be enforced and by whom. With proper assistance the president can side step both congress and the courts.

Improve this answer

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .