America is in a Perpetual State of Emergency

President Obama signs House Joint Resolution 76, which provides for $225 million in supplemental emergency funding to Israel for the Iron Dome missile-defense system. (Photo: Saul Loeb, AFP/Getty Images)
President Obama signs House Joint Resolution 76, which provides for $225 million in supplemental emergency funding to Israel for the Iron Dome missile-defense system.
(Photo: Saul Loeb, AFP/Getty Images)

The United States is in a perpetual state of national emergency.

Thirty separate emergencies, in fact.

An emergency declared by President Jimmy Carter on the 10th day of the Iranian hostage crisis in 1979 remains in effect almost 35 years later.

A post-9/11 state of national emergency declared by President George W. Bush — and renewed six times by President Obama — forms the legal basis for much of the war on terror.

Tuesday, President Obama informed Congress he was extending another Bush-era emergency for another year, saying “widespread violence and atrocities” in the Democratic Republic of Congo “pose an unusual and extraordinary threat to the foreign policy of the United States.”

Those emergencies, declared by the president by proclamation or executive order, give the president extraordinary powers — to seize property, call up the National Guard and hire and fire military officers at will.

“What the National Emergencies Act does is like a toggle switch, and when the president flips it, he gets new powers. It’s like a magic wand, and there are very few constraints about how he turns it on,” said Kim Lane Scheppele, a professor at Princeton University.

If invoked during a public health emergency, a presidential emergency declaration could allow hospitals more flexibility to treat Ebola cases. The Obama administration has said declaring a national emergency for Ebola is unnecessary.

In his six years in office, President Obama has declared nine emergencies, allowed one to expire and extended 22 emergencies enacted by his predecessors.

Since 1976, when Congress passed the National Emergencies Act, presidents have declared at least 53 states of emergency — not counting disaster declarations for events such as tornadoes and floods, according to a USA TODAY review of presidential documents. Most of those emergencies remain in effect.

Even as Congress has delegated emergency powers to the president, it has provided almost no oversight. The 1976 law requires each house of Congress to meet within six months of an emergency to vote it up or down. That’s never happened.

Instead, many emergencies linger for years or even decades.

Last week, Obama renewed a state of national emergency declared in 1995 to deal with Colombia drug trafficking, saying drug lords “continue to pose an unusual and extraordinary threat to the national security, foreign policy and economy of the United States and to cause an extreme level of violence, corruption and harm in the United States and abroad.”

In May, President Obama rescinded a Bush-era executive order that protected Iraqi oil interests and their contractors from legal liability. Even as he did so, he left the state of emergency declared in that executive order intact — because at least two other executive orders rely on it.

Invoking those emergencies can give presidents broad and virtually unchecked powers. In an article published last year in the University of Michigan Journal of Law Reform, attorney Patrick Thronson identified 160 laws giving the president emergency powers, including the authority to:

• Reshape the military, putting members of the armed forces under foreign command, conscripting veterans, overturning sentences issued by courts-martial and taking over weather satellites for military use.

• Suspend environmental laws, including a law forbidding the dumping of toxic and infectious medical waste at sea.

• Bypass federal contracting laws, allowing the government to buy and sell property without competitive bidding.

• Allow unlimited secret patents for Army, Navy and Air Force scientists.

All these provisions come from laws passed by Congress, giving the president the power to invoke them with the stroke of a pen. “A lot of laws are passed like that. So if a president is hunting around for additional authority, declaring an emergency is pretty easy,” Scheppele said.

In 2009, Obama declared a state of national emergency for the H1N1 swine flu pandemic. That emergency, which quietly expired a year later, allowed for waivers of some Medicare and Medicaid regulations — for example, permitting hospitals to screen or treat an infectious illness off-site — and to waive medical privacy laws.

Unlike the Ebola crisis, the swine flu had hospitalized 20,000 people and killed 1,000 when Obama declared an emergency.

At a congressional hearing last week, Centers for Disease Control and Prevention Director Tom Frieden said another emergency power — the ability to waive procurement regulations — may be helpful in responding to Ebola.

The White House said an Ebola emergency isn’t necessary. “I’m not aware of any consideration that currently is underway (for) any sort of national medical emergency,” spokesman Josh Earnest said last week. “I wouldn’t rule it out, but frankly … that’s not something that we’re actively considering right now.”

Presidential emergency powers are hardly new. The Militia Acts of 1792 gave the president the authority to take over state militias to put down an insurrection, which is what President George Washington did two years later during the Whiskey Rebellion. President Abraham Lincoln commandeered ships, raised armies and suspended habeas corpus — all without approval from Congress.

President Franklin Roosevelt declared a state of emergency in 1933 to prevent a run on banks, and President Harry Truman declared one in 1950 at the beginning of the Korean War. After President Richard Nixon declared two states of emergency in 17 months, Congress became alarmed by four simultaneous states of emergency.

It passed the National Emergencies Act by an overwhelming majority, requiring the president to cite a legal basis for the emergency and say which emergency powers he would exercise. All emergencies would expire after one year if not renewed by the president.

Three days after the 9/11 terrorist attacks, President Bush issued Proclamation 7463. It allowed him to call up the National Guard and appoint and fire military officers under the rank of lieutenant general.

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SOURCE: USA Today – Gregory Korte

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