A Guide to Emergency Powers and Their Use

Unknown to most Americans, a vast set of laws gives the president greatly enhanced powers during emergencies. President Donald Trump’s threats to bypass Congress and secure funding for a wall along the border with Mexico by declaring a national emergency are not just posturing. The Brennan Center, building on previous research, has identified 123 statutory powers that may become available to the president when de declares a national emergency, including two that might offer some legal cover for his wall-building ambitions (10 U.S.C. 2808 (a) and 33 U.S.C. 2293 on our list below). An additional 13 statutory powers become available when a national emergency is declared by Congress.

Below are two tables (for a printable PDF version of both tables, click here). The first lists several important laws that establish general frameworks for different kinds of emergencies (including national emergencies, major disasters, public health emergencies, etc.). The second sets forth the 136 statutory provisions available during national emergencies; it displays these powers by subject matter, specifies the conditions triggering their use, and lists the occasions on which they have been invoked. This table is sortable/searchable by level of restriction on the president’s powers, U.S. code title, and keyword. Our top-line observations from this research may be found here, while our methodology for compiling the database is available here. Separately, we have developed a running list of national emergencies declared since the National Emergencies Act went into effect. And we did a deeper dive into some of these powers in the January/February 2019 issue of The Atlantic.

10 U.S.C. § 2808 (a) Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize Secretaries of the military departments to undertake military construction projects, that are necessary to support such use of the armed forces (1982)

https://www.law.cornell.edu/uscode/text/10/2808 [Note: Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.]

https://advocacy.agc.org/billions-of-dollars-in-construction-funding-in-fy-2019-funding-bills/ [Note: On Sept. 13, Congress passed a Fiscal Year (FY) 2019 appropriations bill . . . The bill provides a total of $10.3 billion for military construction projects.]

https://www.law.cornell.edu/uscode/text/33/2293 [Note: I did not find any available the dollar amounts for this, but . . . In the event of a declaration of war or a declaration by the President of a national emergency in accordance with the National Emergencies Act [50 U.S.C. 1601 et seq.] that requires or may require use of the Armed Forces, the Secretary, without regard to any other provision of law, may (1) terminate or defer the construction, operation, maintenance, or repair of any Department of the Army civil works project that he deems not essential to the national defense, and (2) apply the resources of the Department of the Army’s civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense.]

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Other listed items are not obviously relevant, but it's worth studying the list, just in case.

A separate but closely related topic:

I’ve read 50 or more posts today to the effect that “a judge will stop any emergency declaration, and it’ll take a year or two for that to get decided”. The legal remedy from SCOTUS that President Trump will need when an Obama judge issues an unlawful order against this emergency declaration is called “certiorari before judgment”.

https://www.scotusblog.com/2011/02/overview-of-supreme-court%E2%80%99s-cert-before-judgment-practice/

Overview of Supreme Court’s cert. before judgment practice

Virginia’s plans to ask the Court to immediately review the constitutionality of the federal health-care overhaul legislation, as well as Justice Ginsburg’s recent statements suggesting that such a request is unlikely to succeed, are bringing attention to an obscure Supreme Court procedure called “certiorari before judgment.” For those wanting to handicap Virginia’s chances at skipping over the court of appeals, we thought it might be helpful to examine the rules governing such requests and the Court’s past exercise of that power.

Under 28 U.S.C. § 2101(e), the Supreme Court has jurisdiction to accept a petition for certiorari “at any time before judgment,” once a case has been docketed in the court of appeals. Supreme Court Rule 11, however, warns that such petitions will be granted “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

The Court has been true to its word, granting cert. before judgment in only a handful of cases over the past seventy-five years. A few generalities can be made:

First, in the majority of cases, the Court has granted cert. before judgment so that it can hear a case along with another that it has already decided to review through the normal process. Two recent cases are examples: in Gratz v. Bollinger (2003), the Court granted cert. before judgment in a case challenging the constitutionality of the University of Michigan’s undergraduate admissions program so that it could hear the case at the same time as a challenge to the law school’s admissions program (which had previously been reviewed by the Sixth Circuit). Likewise, in United States v. Fanfan, the Court granted cert. before judgment to take the case as a companion to United States v. Booker (2005), another case also challenging the constitutionality of the federal sentencing guidelines.

These examples obviously do not provide Virginia with support for its attempt to have the Court review its constitutional challenge to the federal health-care law without waiting for the Fourth Circuit to weigh in.

Second, among the remaining examples, a good number are cases in which the federal government sought cert. before judgment: Mistretta v. United States (1989), United States v. Nixon (1974), McCulloch v. Sociedad Nacional (1963), Wilson v. Girard (1957), and Kinsella v. Krueger (1956). This suggests that Virginia’s chances of obtaining cert. before judgment would increase considerably if the United States were to acquiesce to the petition and tell the Court that the case needs to be resolved immediately. Conversely, cert. before judgment over the objection of the federal government is exceedingly rare (in fact, I’m not aware of any recent example).

Third, the Court has tended to grant certiorari in cases implicating international relations and presidential authority, particularly in the context of the president’s war powers. Thus, the Court granted early review in Dames & Moore v. Regan (1981), to resolve a challenge to part of the deal that ended the Iranian hostage crisis. In McCulloch v. Sociedad Nacional, the Court considered application of U.S. labor laws to foreign ships in American waters. And in Wilson v. Girard, the Court decided whether the military could turn a U.S. soldier over to Japan for prosecution for a crime committed against a Japanese citizen.

The balance between individual liberty and wartime powers was also the subject of cert. before judgment in Kinsella v. Krueger (whether civilian spouse of U.S. service member can be tried by court martial for murdering her husband) and Ex parte Quirin (1942) (challenging the President’s power to try accused German saboteurs by military tribunal during World War II).

The President’s authority to seize control of national industries in a time of war was also given expedited review in Youngstown Sheet & Tube Co. v. Sawyer (1952) (President’s attempt to seize control of steel companies during Korean war), and United States v. United Mine Workers (1947) (seizure of coal mines at end of World War II).

Outside of wartime, the Court intervened to resolve a dispute regarding the scope of presidential power and privilege in United States v. Nixon, the Nixon tapes case.

The challenge to the federal health-care law does not easily fit into any of the broad categories of international relations, presidential authority, or wartime conflicts.

Key points:

1. The court can and occasionally does act quickly.

2. There are specific situations in which the Court by policy acts quickly.

3. Of those times when SCOTUS intervened, “a good number are cases in which the federal government sought cert. before judgment”. And “the Court has tended to grant certiorari in cases implicating international relations and presidential authority”.

Two of the three situations in which the Court intervenes by tradition apply in the case of Trump’s Wall as soon as some so-called judge exceeds his authority.

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