Name: National Emergencies: Constitutional and Statutory Restrictions on Presidential Powers
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National Emergencies: Constitutional and Statutory Restrictions on Presidential Powers

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Email updates on news, actions,and events in your area.DEEPLINKS BLOGShare ItWhen a president threatens to exercise the power to declare a national emergency, our system of checks and balances faces a crucial test. With President Trump threatening such a declaration in order to build his proposed physical border wall, that test could be an important one that&nbsp;could&nbsp;quickly&nbsp;implicate&nbsp;your right to privacy and a transparent government.EFF has long tangled with governmental actions rooted in presidential power. From mass telephone records to the Internet backbone, and from Internet metadata to biometric and social media , claims of national crisis have often enabled digital policies that have undermined civil liberties. Those policies quickly spread far beyond their initial justification. We have also seen presidential authorities misused to avoid the legislative process—and even used to try to intimidate courts and prevent them from doing their job to protect our rights.So when the President threatens to use those same emergency authorities to try paying for a border wall after Congress has refused, we watch closely. And so should you.The tension created by the constitutional separation of powers among the president, Congress, and the courts during times of national emergency is not new.&nbsp;President Lincoln famously&nbsp; habeas corpus during the American Civil War. Later, President Roosevelt authorized the detention and of 100,000 Japanese-Americans, a profound constitutional offense that ranks among our country’s most severe violations of our founding commitments. Finally, President Truman sought to use emergency powers to nationalize a steel mill to supply the armed forces during their “police action” in Korea.The last of these prompted a lawsuit that has served as the touchstone for consideration of these questions ever since. The case is known as the Steel Seizure Cases or (1952). In Youngstown, the Court ruled against President Truman, holding that he did not have the power to seize a privately owned steel mill.Justice Jackson’s in Youngstown set forth the analytical framework that has come to define this area of law. It explains that executive power stands at its lowest ebb when confronting an explicit act of Congress denying the purported authority, as President Truman did when attempting to seize steel mills. In contrast, executive power attains maximal reach when authorized (either explicitly or by implication) by Congress, such as when Congress has authorized military action. In between, the executive branch has flexible authority within a “zone of twilight” on issues that Congress has not addressed. &nbsp;Flash forward to today. Congress has not appropriated funds to build the wall requested by the President. Given that Congress is the branch of government with the exclusive power to tax and spend, the most obvious way to characterize this refusal is as a rejection of the President’s request—placing the President at his “lowest ebb” of power under the Youngstown analysis.Alternatively, Congress’ silence could be read to indicate that it hasn’t addressed the issue. Congress regularly grants the President an annual sum of funding for “discretionary” spending purposes, from which the administration could claim funds have already been provided and that his acts fall within the “zone of twilight.” On the other hand, funds provided in discretionary budgets are designed to fill budgetary gaps of federal agencies in their regular operations. Construing congressional silence as assent would therefore require a stretch.The choice between these two possibilities will likely be the crux of any legal challenge to the President’s attempt to direct funds absent congressional appropriation. Because Congress exclusively wields the power to appropriate funds and declined to do so here, the courts should overturn any unilateral executive branch action, as they did in Youngstown.In addition to his constitutional powers, could conceivable invoked by the President. Let's look at two we think are more likely:First, Congress enacted the in 1976. The Act has been invoked dozens of times in the years since, usually to prohibit transactions with foreign powers engaged in violent conflict with U.S. military forces.On the one hand, the National Emergencies Act does not specify any particular circumstances that must be satisfied before a president can invoke its extraordinary powers. On the other hand, the preceding its passage reveals Congress’ intent to limit executive fiat by terminating previous open-ended declarations of emergency and providing mechanisms for Congress to limit future declarations.Until either the Senate or House passes a resolution to terminate a national emergency, however, the Act requires relatively little of a president invoking its authority. It the President to periodically report to Congress about any funds it spends related to a declaration of emergency.This requirement for reporting could be read to insinuate presidential authority to spend funds in the event of a bona fide emergency. Courts, however, should scrutinize the legitimacy of any claimed emergency, especially when Congress has affirmatively declined to appropriate the full sum sought by the President.Second, the Robert T. Stafford provides a more well-tested authority for a president to spend funds without congressional appropriation. It, however, has been used only in responses to natural disasters, to enable temporary responses to unforeseen events. It has never justified spending funds that Congress has refused to appropriate in response to a previous executive branch request. It also requires a Governor of an affected state to an emergency declaration from the president, which has yet to happen along the U.S. southern border. In fact, one Governor has&nbsp;.Like the Constitution, statutory powers do not justify a presidential declaration of emergency powers to build a proposed border wall. Given Congress’ refusal to appropriate funds for the president’s proposal, the courts should guard the separation of powers, and not defer to a potential presidential declaration of emergency.Letting a supposed national emergency serve as a pretense for extraordinary executive powers outside of congressional approval has proven to be very dangerous for digital civil liberties. As noted above, emergencies have already served as the basis for creating &nbsp; &nbsp;programs that EFF has worked hard to stop. These same claims have been used to justify tracking immigrants and other marginalized people, tracking that quickly&nbsp;&nbsp; &nbsp;its original justification.Beyond the powers themselves, the secrecy that has come along with those efforts threatens our Constitutional checks &amp; balances by legislative oversight . The we’ve spent trying to get a public federal court to consider the government’s mass surveillance programs has informed our perspective on that problem.Put simply, there is no national emergency exception to the Constitution, or to the key statutes that constrain executive branch authority here. Similarly, national emergencies have never legitimately justified the continual monitoring of hundreds of millions of Americans without a shred of suspicion.&nbsp;As the debate over border policy continues, we urge both the political branches and the judiciary to refuse to allow the&nbsp; about a national emergency to rip holes into our system of checks and balances.&nbsp;We know all too well that such holes can too easily be used to justify a further expansion of both&nbsp;&nbsp;and&nbsp;.Share ItHow transparent are police about surveillance technology? It depends on where you look. When it comes to acceptable levels of secrecy around police tools, states have drawn their lines in very different places, resulting in some communities where it is much harder for the public to know what invasive tools...By unanimous vote, San Francisco's public records appeals body ruled last night that the San Francisco Police Department (SFPD) violated state and local laws when it failed to respond adequately to EFF's requests for documents about face recognition and the department's relationship with the Northern California Regional Intelligence Center (NCRIC),...Elon Musk’s purchase of Twitter highlights the risks to human rights and personal safety when any single person has complete control over policies affecting almost 400 million users. And in this case, that person has repeatedly demonstrated that they do not understand the realities of platform policy at scale.EFF and the the are seeking to unseal a host of court records documenting a patent dispute between Google and Uniloc, a prolific patent litigant.Secrecy pervades the entire record in Uniloc v. Google. When Google filed a motion to dismiss the lawsuit, the parties...Democracy means allowing everyday people to have their voices heard on public matters involving their communities. One of the goals of civic technology is to allow a more diverse group of people to have input on government affairs through the use of technology and the internet. Beth Noveck, author of...SAN FRANCISCO—As part of its ongoing work to ensure that people can know and understand the laws they live under, , a nonprofit organization, on Thursday vindicated its ability to publicly post important laws online in standard formats, free of copy protections and cumbersome user interfaces.The win for Public...EFF is suing the Department of Homeland Security for transparency into its social media surveillance program targeting visa applicants.Each year during Sunshine Week (March 13-19), The Foilies serve up tongue-in-cheek "awards" for government agencies and assorted institutions that stand in the way of access to information. The Electronic Frontier Foundation and MuckRock combine forces to collect horror stories about Freedom of Information Act (FOIA) and state-level public records...For more than three years, EFF has been to court records in a patent case between Uniloc, one of the world’s most prolific patent trolls, and Apple, one of the world’s biggest tech companies. The district court has ruled three different times that the public...Over the last few years, technology platforms have . In one example of this, technology companies have refused to host speech by Palestinian activist Leila Khaled. Khaled is associated with the Popular Front for the Liberation of Palestine, a group on...Share It

Email updates on news, actions,and events in your area.DEEPLINKS BLOGShare ItWhen a president threatens to exercise the power to declare a national emergency, our system of checks and balances faces a crucial test. With President Trump threatening such a declaration in order to build his proposed physical border wall, that test could be an important one that&nbsp;could&nbsp;quickly&nbsp;implicate&nbsp;your right to privacy and a transparent government.EFF has long tangled with governmental actions rooted in presidential power. From mass telephone records to the Internet backbone, and from...

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Cindy Cohn

Shahid Buttar

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National Emergencies: Constitutional and Statutory Restrictions on Presidential Powers

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