Toward Comprehensive Reform of America’s Emergency Law Regime

Unbenownst to most Americans, the United States is presently under thirty presidentially declared states of emergency. They confer vast powers on the Executive Branch, including the ability to financially incapacitate any person or organization in the United States, seize control of the nation’s communications infrastructure, mobilize military forces, expand the permissible size of the military without congressional authorization, and extend tours of duty without consent from service personnel. Declared states of emergency may also activate Presidential Emergency Action Documents and other continuity-of-government procedures, which confer powers on the President-such as the unilateral suspension of habeas corpus-that appear fundamentally opposed to the American constitutional order. Although the National Emergencies Act, by its plain language, requires Congress to vote every six months on whether a declared national emergency should continue, Congress has done so only once in the nearly forty-year history of the Act. This Note and an accompanying online compendium attempt, for the first time since the 1970s, to reach a reasonably complete assessment of the scope and legal effects of the thirty national emergencies now in effect in the United States. The Note also proposes specific statutory reforms to rein in the unchecked growth of these emergencies and political reforms to subject the vast executive powers granted by the U.S. emergency law regime to the democratic process.