Emergency powers




The Constitution does not expressly grant the president additional powers in times of national emergency. However, many scholars think that the Framers implied these powers because the structural design of the Executive Branch enables it to act faster than the Legislative Branch. Because the Constitution remains silent on the issue, the courts cannot grant the Executive Branch these powers when it tries to wield them. The courts will only recognize a right of the Executive Branch to use emergency powers if Congress has granted such powers to the president.

Emergency presidential power is not a new idea. However, the way in which it is used in the twenty-first century, presents new challenges.

A claim of emergency powers was at the center of President Abraham Lincoln's suspension of habeas corpus without Congressional approval in 1861. Lincoln claimed that the rebellion created an emergency that permitted him the extraordinary power of unilaterally suspending the writ. With Chief Justice Roger Taney sitting as judge, the Federal District Court of Maryland struck down the suspension in Ex parte Merryman, although Lincoln ignored the order.

President Franklin Delano Roosevelt similarly invoked emergency powers when he issued an order directing that all Japanese Americans residing on the West Coast be placed into internment camps during World War II. The U.S. Supreme Court upheld this order in Korematsu v. United States.

Harry Truman declared the use of emergency powers when he nationalized private steel mills that failed to produce steel because of a labor strike in 1952. With the Korean War ongoing, Truman asserted that he could not wage war successfully if the economy failed to provide him with the material resources necessary to keep the troops well-equipped. The U.S. Supreme Court, however, refused to accept that argument in Youngstown Sheet & Tube Co. v. Sawyer, voting 6-3 that neither commander-in-chief powers nor any claimed emergency powers gave the president the authority to unilaterally seize private property without Congressional legislation.

Congressional legislation gives the President powers to commandeer states and governors of states, if the President deems they are engaged in insurrection.

According to research conducted by the Brennan Center at New York University Law School, administrations since Eisenhower have drafted secret Presidential Emergency Action Documents (PEADs) that assert what one government document described as "extraordinary presidential authority in response to extraordinary situations." These secret powers appear to be exempt from congressional oversight. PEADs undergo periodic revision, and although their current contents were not known as of 2020, previous PEADs included emergency powers to detain "alien enemies" and other "dangerous persons"; invoke various forms of martial law; authorize a general warrant permitting search and seizure of persons and property; suspend production of the Federal Register; and censor news reports. The Brennan Center found that 56 PEADs were in effect as of 2018.

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