Declaration of a State of Emergency -- can President Obama issue one to prevent default?

[Samantha]

Last edited Fri Oct 18, 2013, 12:42 PM - Edit history (1)

Starting with the recognition we are still at war in Afghanistan, one would think if an economic disaster loomed on the horizon in the United States, the President would have the authority to act to preserve both our economy and our national security. The question then becomes what authority could he use that did not require the Legislature's approval. Perhaps the answer lies with a Declaration of a State of Emergency.

A preliminary review of several sources suggests that is a very real option President Obama could exercise if the debt ceiling is not lifted and the threat of default is a very real danger to the Country. Perhaps you might consider this possibility and comment.

What is the National Emergencies Act?

http://en.wikipedia.org/wiki/National_Emergencies_Act

"The National Emergencies Act (Pub.L. 94–412, 90 Stat. 1255, enacted September 14, 1976, codified at 50 U.S.C. § 1601-1651) is a United States national law passed to stop open-ended states of national emergency and formalize the power of Congress to provide certain checks and balances on the emergency powers of the President. It imposes certain "procedural formalities" on the President when invoking such powers.

The perceived need for the law arose from the scope and number of laws granting special powers to the executive in times of national emergency (or public danger).

Under the Trading with the Enemy Act of 1917 ("TWEA&quot , starting with Franklin D. Roosevelt in 1933, presidents had the power to declare emergencies without limiting their scope or duration, without citing the relevant statutes, and without congressional oversight.[1] The Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer limited what a president could do in such an emergency, but did not limit the emergency declaration power itself. A 1973 Senate investigation found (in Senate Report 93-549) that four declared emergencies remained in effect: the 1933 banking crisis with respect to the hoarding of gold,[2] a 1950 emergency with respect to the Korean War,[3] a 1970 emergency regarding a postal workers strike, and a 1971 emergency in response to inflation.[4] Title V, Section 502 of P.L. 94-412 specifically exempts the statutorily authority cited in the Proclamations of these four declared states of national emergency from termination. It then passed the International Emergency Economic Powers Act to restore the emergency power in a limited, overseeable form."

Take a look at Reference #1 at the same link:

" H. Rep. No. 95-459, at 7 (1977) "[the TWEA] has become essentially an unlimited grant of authority for the President to exercise, at his discretion, broad powers in both the domestic and international economic arena, without congressional review. These powers may be exercised so long as there is an unterminated declaration of national emergency on the books, whether or not the situation with respect to which the emergency was declared bears any relationship to the situation with respect to which the President is using the authorities"

So I took a look to see if there are any unterminated declarations of national emergency in effect. As you can see from the above paragraph (b) quote, the declaration a President is making does not necessarily have to "bear any relationship to the situation with respect to which the President is using the authorities."

THERE ARE MANY CURRENT DECLARATIONS OF NATIONAL EMERGENCY IN EFFECT.

http://speakwithauthority-jsm.blogspot.com/2013/03/the-danger-of-americas-endless-national.html

"In the past year, President Obama has signed continuations of National Emergency declarations for Zimbabwe, Cuba, Libya, Ivory Coast, the Middle East Peace Process, Sudan, Weapons of Mass Destruction, Democratic Republic of the Congo, Lebanon, Significant Transnational Criminal Organizations, the Former Liberian Regime of Charles Taylor, the Western Balkans, the Risk of Nuclear Proliferation Created by the Accumulation of Weapons-Usable Fissile Material in the Territory of the Russian Federation, Belarus, Iraq, Syria, Somalia, and Iran (2); nineteen in all. Nineteen concurrent "national emergencies." Most Americans, and perhaps most politicians, would be hard pressed to explain the circumstances surrounding one-third of these emergencies, let alone all nineteen. The mere existence of some of these declarations would doubtless be a surprise to many."

What are the requirements for declaring a national emergency?

"The National Emergencies Act requires the president to specify the provisions in the law upon which his actions under each declaration are authorized.

* * *
Last year, President Obama extended the National Emergency with respect to terrorism that President Bush signed after the devastating attacks on America by al-Qaeda on September 11, 2001." (see link above).

Finally, as I was writing this thread, I found an article published by Brookings entitled "President Obama Should Issue an Executive Order to Raise the Debt Ceiling":

http://www.brookings.edu/blogs/fixgov/posts/2013/10/12-debt-ceiling-and-the-power-of-the-president-jackman

"It is the right of any president to declare a state of emergency and to take action necessary to protect the nation. America has a long-standing history of granting or tacitly accepting expanded presidential powers in times of crisis. As the sole figure elected by the entire nation, he is the politician to whom we turn when faced with a national emergency, and in so doing, we often allow him leeway to act in ways that protect the nation even if we would not imbue those powers upon him in calmer times."

* * *

Once a state of emergency is declared, the President would have multiple mechanisms through which to raise the debt ceiling – via an executive order, memorandum, or proclamation, to name a few. The exact mechanism chosen, though, is of less importance than the action itself. The ultimate arbitrator of the constitutionality of the President’s actions will be the Supreme Court (notably, not Congress). Since the Constitution does not clearly state that the President cannot raise the debt ceiling in times of crisis – see the 14th Amendment argument – and the public is eager for any solution to the debt ceiling impasse, it seems likely that the courts would look favorably on presidential action to prevent an economic emergency of this magnitude.

Thus, the solution to the debt ceiling crisis lies in President Obama’s hands. He needs to recognize this as the national emergency that it is, and issue an executive order to solve the problem. Congress will get in line if he does. It’s a game of chicken, but in this game, the president holds the trump card."

Summary

It does appear there is an emergency exit from the economic default. Obviously, I am not an expert on this subject so you might know of conflicting factors.

In my opinion, I believe it is entirely possible this is a political trap for our President. If he does nothing, the House might possibly use his inaction as grounds for impeachment. He failed to prevent an economic collapse in the Country. Can't you hear the Tea Party warming up? If he does act, the possibility exists that the Republicans will accuse him of a power grab and try to impeach him for whatever actions he takes. Politically, he could be in a no-win situation.

Beyond that, if the decision to act ends up in the Supreme Court, one cannot assume that particular Court would not stoop to a political as opposed to a legal opinion. Think Bush v. Gore. The Republican party's motto in 2000 while competing in the Presidential race was "win at all costs." Assuming that is still the operative imperative, the question now becomes what will President Obama do about it? What do you think is the answer?

Sam