Trending: Presidential Emergency Powers

In 1976, the United States Congress passed the National Emergencies Act (NEA), Pub. L. 94–412, 90 Stat. 1255.  It was enacted September 14, 1976 but did not take effect until two years later in 1978.  You can find it in the United States Code at 50 U.S.C. § 1601–1651.  A compiled Legislative History can be found in the U.S. Legislative History file located in Hein Online.  If you are not a student, staff or faculty member at the University of Hawaiʻi at Mānoa, you can visit the Law Library at 2525 Dole Street to access this material.

Prior to passing the NEA, Presidents had authority to declare a national emergency if expressed in specific statutes or implied by the United States Constitution. The first use of this power can be traced back to 1775 when the Continental Congress authorized President Hancock to use force in stomping down Shay’s Rebellion, an insurrection movement in Massachusetts where farmers committed violent acts on U.S. courthouses and other government properties as a form of protest against burdensome economic policies.  (The rebellion is named after Daniel Shays, a farmer and solider who fought at Bunker Hill and was a leader of this rebellion.)  The first “emergency proclamation” issued as such was made by Woodrow Wilson on February 5, 1917 (39 Stat. 1814) and concerned water transportation.  President Wilson invoked the authority expressly authorized to him in the legislation establishing the United States Shipping Board (39 Stat. 728). 

Prior to the NEA, there was no procedure involving Congress or requirement for notification when national emergencies were proclaimed or terminated.  Concern over emergency proclamations escalated during the Vietnam War and the U.S. incursion into Cambodia.  By declaring a national emergency, a President could bypass the provisions of the Constitution in declaring war, a responsibility clearly left to the U.S. Congress and not the Executive branch of government.  These types of maneuvers led Congress to pass legislation that laid out procedure for both enacting an emergency and terminating one.

The NEA does not provide any specific emergency authority on its own.  When a President declares a national emergency under the NEA, the declaration activates the emergency provisions of other federal statutes.  For example, if there is a health pandemic, there is nothing in the NEA that provides for quarantine of infected individual, but there are emergency provisions contained in other parts of the United States Code and the Code of Federal Regulations.  Under the NEA, the Presidential declaration must identify what authorities s/he is specifically enacting, and the U.S. Congress must be notified immediately. The most current proclamation made by President Trump invokes the emergency military construction authority in 10 U.S.C. 2808.

An emergency declaration takes the form of an Executive Order and is published a few days after it is announced in the Federal Register (click here for older orders dating back to 1994).  Executive Orders live permanently in Title 3 of the Code of Federal Regulations (click here for older issues dating back to 1992). The Brennan Center as compiled a list of the Executive Orders declaring a national emergency since the NEA was passed:  As of the writing of this post, the declaration had not been assigned an Executive Order Number, nor was it published in the Federal Register.

In 50 U.S.C. 1622, Congress laid out the provisions for terminating a national emergency.  First, Congress can pass a joint resolution at any time to terminate the declaration.  In any case, Congress must review the necessity of emergency status every six months.  Second, the President can terminate an emergency by proclamation.  Third, if the President does not follow through with his/her reporting requirements under 50 U.S.C. 1641, the emergency will automatically terminate 90 days following the failure to provide a 6-month progress report.

To learn more about how Presidential emergency powers developed, you can read the Committee Print, A Brief History of the Emergency Powers in the United States published in July 1974.  We also subscribe to a 2014 e-book by Justin P. DePlato titled The Cavalier Presidency:  Executive Power and Prerogative in Times of Crisis.

The Supreme Court is Getting Ready to Rock-N-Roll

In case you hadn’t noticed, the U.S. Supreme Court is back in session. For a quick preview of the many blockbuster cases on the calendar this session, you might want to take in this Law 360 Pro Say Podcast: (If you do not know how to activate your Law 360 access, contact Brian Huffman!)

The Court is already underway with the Notorious RGB leveraging a constitutional smack down on new Justice Neil Gorsuch in Gill v. Whitford (a/k/a the partisan gerrymandering case). Attorney Smith was answering Justice Ginsburg question on how redistricting laws created one party rule in some states. Justice Gorsuch interrupted and diverted attention away from an equal protection argument to a Republican form of government clause theory supported by constitutional textualism. Justice Gorsuch said:

“… where exactly do we get authority to revise state legislative lines? When the Constitution authorizes the federal government to step in on state – state legislative matters, it’s pretty clear.  If you look at the Fifteenth Amendment, you look at the Nineteenth Amendment, the Twenty-Sixth Amendment, and even the Fourteenth Amendment, Section 2, says Congress has the power, when state legislators don’t provide the right to vote equally, to dilute congressional representation. Aren’t those all textual indications in the Constitution itself that maybe we ought to be cautious about stepping in here?” – Gill v. Whitford transcript, page 59, courtesy of Scotus.

Justice Ginsburg intervened in the Gorsuch/Smith back and forth asking the Court:  Where did one person/one vote come from? She was referring to the 1963 Reynolds v. Sims Supreme Court decision. One person/one vote was read into the Constitution by Chief Justice Earl Warren and it is not in the Constitutional document itself, upending Justice Gorsuch’s textualism argument.  You can actually listen to the oral arguments on the Oyez website!

Wowza!  The Supreme Court is getting ready to rock-n-roll!

I know you want to keep track of all the exciting Supreme Court happenings. Here is a short list of some of my favorite Supreme Court resources. NB: If is it marked with $$$, it indicates that this is a subscription database so you will either need a username and password, or perhaps proxy access if you are trying to open the page from off campus.

BTW, the NYT has a good article on the “new math” of gerrymandering and how you might measure the effect of redistricting using one method called the “efficiency gap.”

Daily News

Lyle Dennison Law News,

New York Times Supreme Court News Page: $$$

iScotus Now,

Scotus Blog,

Supreme Court Brief, $$$

Supreme Court Dispatches, Slate News,


More General Coverage

Appellate, $$$

BloombergLaw, United States Law Week, $$$

Reuters Supreme Court News,

NPR Stories About the Supreme Court:

Oyez,, Providing the facts of the case, question presented and conclusion for all cases beginning in 1789.  Oyez also has select audio coverage of oral arguments.

Washington Post’s Courts and the Law:,

Supreme Court web site,


Deeper Analysis

Merits, from Scotus Blog, – you might also be interested in their stats pack page:

Preview of United States Supreme Court Cases (via Hein),  Eight issues a year analyzing the court’s decisions.

1) $$$

2)  Via the ABA web site:

3) Westlaw, $$$