U.S. President Trump On the afternoon of March 13, he officially declared a "national emergency" in his speech at White House . He said the move aims to get the U.S. federal government to devote all its efforts to fight the new crown pneumonia epidemic. The move will release $50 billion in funding to help states and local governments respond to the epidemic.
After the "9/11" terrorist attacks, the US president often exercises "emergency power" to maintain stability in national order. According to statistics from the Brennan Center for Justice at the New York University School of Law, the U.S. president can find authorizations in 123 legal provisions. In the 42 years from 1978 to 2020, the U.S. President declared a total of 59 (excluding this) state of emergency, 31 of which are still in effect today. Among them, 17 national emergency was declared during the Clinton period, 13 national emergency was declared during the Bush period, and Obama announced 12 national emergency, an average of 1.5 times per year.
Emergency power in the US Constitution
"Power-restriction" and "authorization" are the essence of the US Constitution. The "preamble" of the Constitution reads: "In order to establish a more complete federation, establish justice, guarantee domestic peace, provide common defense, promote public welfare, and enable ourselves and future generations to enjoy the freedom and happiness." The plan designed by the "Fathers of the United States" was to use the "Congress" and the "President" to check and balance each other, and the Supreme Court has the right to interpret the legal provisions of the Constitution.
The Constitution stipulates that Congress has the right to bear the "planning of the defense and public welfare of the United States" in a state of emergency. Before taking office, the President should swear “…to do his best to safeguard, abide by and defend the Constitution of the United States.” "The President is the commander-in-chief of the United States' army and navy, and is called by the militias of the states to serve as the commander-in-chief of the United States for the mission." The President shall report to the Congress at any time and present the policy provisions he considers necessary and appropriate to Congress for consideration. The President may convene meetings between the two or any one of the houses at extraordinary times.
However, there is no specific legal provision to divide and define how the president and Congress should use emergency powers. The Constitution divides the powers in response to states of emergency into legislative powers (Parliament) and executive powers (President). When a power dispute broke out between the president and Congress, the Constitution grants the Supreme Court the final interpretation of the Constitution, in order to reflect the legislative spirit of the separation of powers in the Constitution and prevent possible tyranny from any party.
From the review of the history of the US Constitution, under states of emergency such as Civil War , the two world wars, the Great Depression, and the War on Terrorism, the differences between Congressional legislation and the president's emergency power will concession for the greatest reason for the survival of the country. The Supreme Court often makes explanations that tend to be inclined to the president based on "state reasons". After several major crises, the American people reached a consensus: "A person can act faster and more decisively than 535 members of Congress with different interests and opinions."
"National Emergency" during the American Civil War
Δ Lincoln
1860 Republican Lincoln was elected president, and his political tendency was biased towards "advocating restriction of slavery", which undoubtedly touched the southern forces that advocated slavery. In February 1861, seven states announced their separation from the Federation and established the "American Alliance" (four states later joined one after another), further attacking the military fortresses set up by the central government in the south, and the Civil War broke out. On April 15 of the same year, during the recession of Congress, Lincoln issued an executive order declaring the acts of the seven states a rebellion and demanding a temporary suspension of habeas warrants in these areas. In addition, Lincoln asked the two houses of Congress to hold a special meeting on July 4 to summon militias and suppress the rebellion.
In fact, the First Act of the Militia Act of 1795 mentioned that "whenever the United States is invaded or is about to face the danger of invasion from any foreign or Indian tribe, it is legal for the President of the United States to call such a number of the most convenient militias of the country or nation.He may think that the danger or venue of action could rule out such an invasion and for this purpose the orders he deemed appropriate were issued to the militia officers. "In response to the Baltimore mob attacks the train transporting the army, Lincoln authorized the military to "stop the habeas protection order rights in Pennsylvania, Delaware , Maryland and District of Columbia ."
Maryland is one of the areas that temporarily suspend the right to habeas protection. The state-backed Alliance Army Lieutenant Merriman was suspected of participating in the bombing of the National Railway Bridge and was arrested for treason. Merriman's lawyer Williams appealed the Supreme Court to apply for the suspension of habeas protection orders. At this time, Tanney, who was on duty in Maryland, immediately approved their request. But William, who received the habeas protection order, went to the military. But he was turned away on the grounds that the president had announced the suspension of the habeas voltage in Maryland based on the threat of national security. However, Justice Tanney believed that, based on Article 1, paragraph 9 of the Constitution, "the privilege of habeas voltage shall not be suspended, but in the case of rebellion or aggression, this is not allowed for public safety requirements." Although the Constitution does not stipulate whether the habeas voltage is authorized by Congress or the president, in any case, Tanney believes that the first thing to consider is the Congress's opinion.
Based on Tanney's doubts, in a Congressional speech held on July 4, 1863, Lincoln made a declaration of firmly defending the country: "In order to prevent a certain law from being violated, should other laws be enforced and the government itself collapse? If we know that we can protect the government even if we violate a certain law, but let the government be overturned, isn’t this a violation of the oath? "After fierce debate, Congress formally recognized "all actions, statements and orders by the President against the United States Army and Navy, and all actions, statements and orders by the President to recruit or coordinate militias or volunteers from all parts of the United States." Lincoln then extended this suspension order to all states in March 1863, and he adopted "unauthorized arrest, untrialed detention, unpunished release, which always restricted civil liberties during the Civil War." It was not until the Habitat Protection Act was issued in 1863 that the habitat protection order was taken to Congress.
"Presidential Emergency" in the two world wars
Δ Wilson
Lincoln's innovative interpretation of the president's emergency power shook the balance between Congress and the president's power. Under a state of emergency, the focus of power began to gradually turn to the president. Wilson faced a completely different national dilemma from Lincoln - the former faced a civil war crisis, while the latter obtained extensive mandate of action during World War I, and even involved in the control of economic affairs - more than Lincoln's power gained. It should be broad."
In January 1917, Germany launched an unlimited submarine war against ships in the waters around Britain. To ensure the safety of the United States, on February 5 of the same year, Wilson became the first president in the United States to declare a national emergency by means of a presidential executive order. He claimed: "I found that a national emergency has emerged, and the maritime transportation capacity and tonnage of agricultural products, forest products, mineral products and processed products are insufficient. "At the same time, in June 1917, Congress issued a series of emergency bills, including the "Spy Activities Act" aimed at imprisoning recruitment and advocating traitors, and the "Anti-German-Anti-English Speech Act" promulgated in May 1918. Wilson quoted Burke's passage in the article "Party of Congress": "The scope of the law is very small. No matter what kind of government it forms, the main responsibility of this government must rely on the exercise of power. Generally speaking, power is given to the smart and upright ministers of the state, and even the various applications and power of the law depend on the executive power. Without power, the Republic is nothing but a lively and active organization. "Wilson believes that during the war, only by giving full authority to the President and the institutions that govern the state can the national war machine operate efficiently can we assume the responsibility of defending the country.
Whether it is Lincoln or Wilson, the expansion of presidential power through the "national emergency" is limited to the internal affairs and military fields. By the time of Franklin Roosevelt, it has expanded comprehensively in the fields of legislation, finance, economy, administration, diplomacy and military. As he mentioned in his inaugural speech, “If Congress cannot solve the problem, the executive should be expanded, and the power should be granted to the president the same as the war in a state of emergency”.
Δ Roosevelt
In the Roosevelt era, in order to deal with the Great Depression, the US Congress passed the National Industrial Revival Act on June 16, 1933, which declared: "A state of emergency that has caused widespread unemployment and industrial disintegration, hindered interstate and foreign trade, affected public welfare, and reduced the living standards of the American people." The US Congress granted Roosevelt the power generally used to deal with war crises in response to economic crises. Taking the Trade with Enemy Countries Act of 1917 as an example, this plan itself is aimed at enemies in wartime, not economic depression. The bill clearly states that "investigate, manage or prohibit foreign exchange transactions through licenses or other means, as well as the export, hoarding, financing or stamping of gold, silver or currency or its circulation, in accordance with relevant regulations and regulations that he has the right to formulate." In accordance with this bill, Roosevelt announced that he ordered banks to take leave, banned gold and silver exports, and banned foreign exchange transactions. In order to implement the huge plan to revive the U.S. economy, the U.S. government formed hundreds of departments, relying on a legal basis that was a provision in the National Industrial Revival Act, which authorized the president to form an executive body without considering various administrative affairs laws. The National Industrial Revival Act gives the president strong power over economic regulation to help the United States survive the economic depression.
As the United States is involved in World War II, Roosevelt's presidential power has greater room for expansion. On September 8, 1939, Roosevelt declared that the United States entered a "limited national emergency". The Maginot Line of Defense was broken by the German army on the border of the French Rhine River in May 1940. A year later, when the Japanese General Hirahachiro Togo led the Japanese joint fleet to defeat the Russian Second Pacific Fleet, Roosevelt was soberly aware that the United States would be attacked by double-sided Pacific Ocean and the Atlantic Ocean. He began to upgrade the emergency level to the "infinite national emergency."
1942, the second year after the Pearl Harbor incident and the outbreak of the Pacific War, Roosevelt signed the Presidential Executive Order No. 9066, which has so far been controversial, based on the grounds that "the war is going smoothly, requires that all possible measures be taken to prevent espionage and conspiracy." The executive order requires the detention of 120,000 American Japanese living in California and other places to be concentrated camps and managed in a unified manner, the reason is that the US Army Intelligence Bureau deciphered the intelligence of the Japanese Ministry of Foreign Affairs, which directly pointed out that American Japanese are potential targets for the development of Japanese intelligence agencies.
On January 29, 1942, the US Department of Justice designated the West Coast (near Los Angeles Airport ) as a military restricted area, and moved out of all Japanese residents in the restricted area within a deadline (before February 15). On February 19, Roosevelt signed an executive order to transfer the jurisdiction of the Department of Justice's military restricted areas to the Western Defense Commission. "The issuance of this executive order will mean that the Secretary of Justice's original duties and powers will be invalid in these military areas that will be redistributed (according to the announcements issued on December 7 and 8, 1941, the Secretary of Justice has jurisdiction over the activities of enemy overseas Chinese in the West Coast of the United States). The Secretary of War and the commanders of the local military areas can take the necessary steps to force personnel in the military areas to comply with the instructions."
In order to strengthen the military's actions, the US Congress passed Public Law No. 503 on March 19, stipulating that any act of refusing to leave the military area is an illegal act, and violators will be punished such as imprisonment or fines. About two-thirds of these people are Japanese-American citizens without any judicial proceedings. This move undoubtedly violates the basic principles of the US Constitution, which triggered a series of cases of Japanese Americans suing the US federal government, such as the Pinglin case in 1943 and the Ani Wen case. The 1944 case was the most typical.
is Matsuto Saburo was a 23-year-old Japanese American shipyard welder at the time. When the migration order was issued, Matsuto was preparing to marry a white woman. For this reason, he refused the government's order to leave the West Coast military restricted area and enter a concentration camp established for Japanese. He was finally arrested by the FBI and sued the District Court for his intentional staying in the military restricted area in violation of Public Law No. 503 and refusing to move Citizen Act No. 34. It was Matsuto Saburo who believed that if the migration order was constitutional, it should target all American citizens, not minorities. At that time, there was no evidence that Matsuto Saburo was suspected of endangering national security. It was Matsuto Saburo who appealed to the Supreme Court.
On October 11, 1943, the Supreme Court of the Federal Court accepted the case, and on December 18, ruling to uphold the conviction of Matsuto Saburo Matsuto Saburo Matsuto Saburo Matsuto. Justice Black explained the reason on behalf of the court: "There are objectively colluding with enemies, but it is impossible to quickly check each person one by one. It is appropriate to migrate Japanese Americans as a whole based on the war needs to be a war. This isolation has nothing to do with racial discrimination. Its purpose is to be military danger, not race itself." In this way, national survival security is more important than Matsuto Saburo's personal and Japanese American rights. In the case of "emergency and danger", compulsory exclusion is constitutionally suspicious, but it is reasonable.
declared a state of emergency, the president has 136 powers
Δ President Bush
01 terrorist attacks in 2001, President Bush announced through an executive order: "Terrorists attacked the World Trade Center and the Pentagon, and we are still threatened by terrorist attacks, and the United States must enter a state of emergency." On September 20 of the same year, the United States declared war on Afghanistan . On October 7, President Bush delivered a speech at the White House residence saying: "The US military implemented the president's order and began to launch attacks on Laden terrorist training camps and the Afghan Taliban regime." The "9/11" incident marked the peak of the "national emergency".
The legal state of emergency in the United States began in 1978, which originated from the National Emergency Act passed in 1976 and the International Economic Powers Act passed in 1977. The former includes procedural regulations on the declaration procedures for a national emergency, time limit, government fiscal expenditure and power in an emergency. The latter is more about maintaining national security at the economic level. Under this bill, the president can exercise special powers on foreign exchange controls, international payments, and the transfer or transfer of currency, securities and property that are of interest to foreigners. Under the declaration of a state of emergency, the president has 136 powers, not only can he send troops abroad, confiscate private property, control enterprises across the country, but also promulgate national martial law. (Source: Pengpai News Liu Hui Zhang Wuwei/Written, "Journal of Yunnan University" Fang Xu/Written)
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