US President Donald Trump continues to suggest that he might declare a national emergency over the border wall and government shutdown. This didn't happen in his televised address to the nation Tuesday — but that doesn't mean he won't. Declaring a national emergency has been one of the few ways out of the border wall stalemate that has caused a partial government shutdown for three weeks.
But the US is still technically in crisis right now. There are 31 active national emergencies — including three that have been declared under Trump, and one that dates back to Jimmy Carter's administration in the late 1970s.
What qualifies as a national emergency? No one really knows — there is no clear federal definition. But a declaration does give the president special and far-reaching powers, including those that would normally be illegal. Under the National Emergencies Act of 1976, the president is required to specify which of the 136 statutory powers they want to use, but these powers don't have to match the emergency identified. That means, for example, Trump could conceivably use a national emergency to control communications systems — including the Internet — in addition to appropriating Department of Defense funds to build a wall along the southern border.
“It's almost a certainty that we would see misuses, abuses of emergency powers,” Elizabeth Goitein, co-director of the Liberty and National Security Program at New York University's Brennan Center, told The World. “My concern is that it could be the kinds of abuses that really could undermine our democracy.”
But there is a difference between Trump's potential declaration and most of the continuing states of emergency declared over the past 39 years. Trump's executive order would be focused on a theoretical national security situation on the US border — most others (but not all) states of emergency have responded to humanitarian and political threats abroad: for governmental human rights abuses, terrorism, regional destabilization or recruitment of child soldiers. Most of these orders provide authorization for sanctions and work in tandem with the International Emergency Economic Powers Act of 1977, which gives the president authority to regulate commerce during a national emergency.
Of the 31 national emergencies still active, several also point to explosive conflicts happening today. Six years ago, President Barack Obama issued a state of emergency after the Arab Spring uprising in response to Yemeni governmental actions threatening “Yemen's peace, security and stability” and rejecting “a peaceful transition of power that meets the legitimate demands and aspirations of the Yemeni people for change.” Today, Yemen faces the world's largest humanitarian crisis.
Bush's 2001 declarations in response to the 9/11 attacks also still exist — but giving the president years-long special powers isn't what the NEA was designed for.
After a national emergency is declared, it can only be ended by a presidential proclamation or by Congress. These emergency powers are intended to be temporary — a stopgap until Congress can act. But this check has “been entirely ignored,” Goitein says. “Congress has never voted on whether to end a state of emergency.”
This has led to speculation of how a border wall declaration would be countered.
“There would certainly be legal challenges if the president were to rely on them and it would be a real fight in the courts,” Goitlein says.
But where are we now? Here's a list of the current active national emergencies, from the most recent — a mere two months — to the oldest — 39 years.
Under Donald Trump
Nearly 2 months:
Blocking Property of Certain Persons Contributing to the Situation in Nicaragua (Nov. 27, 2018), which targets elites in Nicaragua, in response to President José Daniel Ortega's crackdown on a popular uprising and human rights abuses.
Imposing Certain Sanctions in the Event of Foreign Interference in a United States Election (Sept. 12, 2018), which gives intelligence agencies 45 days after an election to establish whether interference occurred and trigger potential sanctions.
Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption (Dec. 20, 2017), which targets corrupt actors and human rights abusers. This executive order is tied to the Global Magnitsky Human Rights Accountability Act, which Congress passed in 2016.
Under Barack Obama
Blocking Property of Certain Persons Contributing to the Situation in Burundi (Nov. 23, 2015), which targets individuals in response to violence against civilians and political repressions in the East African country.
Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities (April 1, 2015), which targets individuals using cyber capabilities for economic corruption or infrastructure damage. The order also signaled that access to US markets could be tied to good cyber behavior.
Blocking Property and Suspending Entry of Certain Persons Contributing to the Situation in Venezuela (March 9, 2015), which targets elites involved in human rights abuses and corruption in Venezuela.
Blocking Property of Certain Persons Contributing to the Conflict in the Central African Republic (May 12, 2014), which targets individuals in response to inter-sectarian violence, including the recruitment of child soldiers.
Blocking Property of Certain Persons With Respect to South Sudan (April 3, 2014), which targets individuals in response to violence and human rights abuses, and specifically including those against women and children in South Sudan.
Blocking Property of Certain Persons Contributing to the Situation in Ukraine (March 6, 2014), which is connected to sanctions in response to Russia's incursion on Ukrainian sovereignty, including the annexation of Crimea.
Blocking Property of Persons Threatening the Peace, Security, or Stability of Yemen (May 16, 2012), which targets certain members of the government of Yemen and others in response to threats against peace and stability after the Arab Spring uprising.
Blocking Property of Transnational Criminal Organizations (July 25, 2011), which targets organized crime syndicates like the Yakuza (Japan) and the Camorra (Italy).
Blocking Property and Prohibiting Certain Transactions Related to Libya (Feb. 25, 2011), which targets elites in Libya and children of Col. Muammar Gaddafi in response to government violence against civilians.
Blocking Property of Certain Persons Contributing to the Conflict in Somalia (April 12, 2010), authorizing sanctions in response to violence and piracy in Somalia.
Under George W. Bush
Continuing Certain Restrictions with Respect to North Korea and North Korean Nationals (June 26, 2008), which was issued to extend restrictions that would have expired with the Trading with the Enemy Act, in response to North Korean nuclear assets and the potential for proliferation.
Blocking Property of Persons Undermining the Sovereignty of Lebanon or Its Democratic Processes and Institutions (Aug. 1, 2007), which targets individuals undermining Lebanese sovereignty and stability, and related attempts to assert Syrian control over the region through violence and intimidation.
Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo (Oct. 27, 2006), authorizing sanctions in response to human rights atrocities and violence in the Democratic Republic of the Congo.
Blocking Property of Certain Persons Undermining Democratic Processes or Institutions in Belarus (June 16, 2006), which targets political elites in Belarus and others in response to political repressions, corruption, human rights abuses and fundamentally undemocratic elections.
Blocking Property of Certain Persons and Prohibiting the Export of Certain Goods to Syria (May 11, 2004), authorizing sanctions in response to Syrian state support of terrorism, pursuit of weapons of mass destruction and other arms, occupation of Lebanon and undermining stability of Iraq.
Protecting the Development Fund for Iraq and Certain Other Property in Which Iraq has an Interest (May 22, 2003), which safeguards Iraqi petroleum and other funds from being used to obstruct rebuilding in Iraq. The emergency was extended in August 2003 to authorize sanction against the former regime in Iraq, certain officials and their family members.
Blocking Property of Persons Undermining Democratic Processes or Institutions in Zimbabwe (March 6, 2003), which targets elites in Zimbabwe in response to efforts to undermine democracy and incite violence and politically motivated instability in the southern African region.
Blocking Property and Prohibiting Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism (Sept. 23, 2001), which targets anyone with ties to terrorist operations, issued in direct response to the Sept. 11, 2001 attacks.
Declaration of National Emergency by Reason of Certain Terrorist Attacks (Sept. 14, 2001), issued in response to the 9/11 attacks, this executive order gave Bush sweeping powers to mobilize armed forces.
Continuation of Export Control Regulations (Aug. 17, 2001), which extends the Export Administration Act of 1979, asserting that foreign parties should not have unrestricted access to US goods and technologies.
Blocking Property of Persons Who Threaten International Stabilization Efforts in the Western Balkans (June 26, 2001), which targets individuals engaging in or supporting extremist violence or obstructing the Dayton Accords in the former Yugoslavia region.
Under Bill Clinton
Blocking Sudanese Government Property and Prohibiting Transactions with Sudan (Nov. 3, 1997), authorizing sanctions against the government of Sudan for their support of international terrorism, destabilization of the region and human rights violations, including slavery.
Regulations of the Anchorage and Movement of Vessels with Respect to Cuba (March 1, 1996), which was issued after Cuba shot down to US civilian planes. This was modified by Obama after relations thawed between the US and Cuba, but under re-upped under Trump, specifically citing immigration concerns that the “outflow of Cuban nationals may have a destabilizing effect on the United States.”
Blocking Assets and Prohibiting Transactions with Significant Narcotics Traffickers (Oct. 21, 1995), which targets foreign drug traffickers in response to “violence corruption and harm” caused in the US and abroad.
Prohibiting Certain Transactions with Respect to the Development of Iranian Petroleum Resources (March 15, 1995), which limited US business agreements regarding Iranian oil.
Prohibiting Transactions with Terrorists Who Threaten to Disrupt the Middle East Peace Process (Jan. 23, 1995), which forbids transactions with organizations such as Hamas, Hezbollah and others.
Proliferation of Weapons of Mass Destruction (Nov. 14, 1994), which provides for the control the exports of WMDs and their delivery mechanisms.
Under Jimmy Carter
- Blocking Iranian Government Property (Nov. 14, 1979), which was issued right after the beginning of the Iran hostage crisis and forms the basis for long-term sanctions on the government of Iran and its central bank.