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Toward Comprehensive Reform of Americas Emergency Law Regime

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Nội dung chi tiết: Toward Comprehensive Reform of Americas Emergency Law Regime

Toward Comprehensive Reform of Americas Emergency Law Regime

University of Michigan Journal of Law ReformVolume 462013Toward Comprehensive Reform of America's Emergency LawRegimePatrick A. ThronsonUniversity of

Toward Comprehensive Reform of Americas Emergency Law Regime Michigan Law SchoolFollow this and additional works at: https://repository.law.umich edu/mjlr& Part of the Disaster Lav/ Commons, Legislation Commons

, National Security Law Commons, and the PresidenVExecutive Department CommonsRecommended CitationPatrick A. Thronson, Toward Comprehensive Reform of Toward Comprehensive Reform of Americas Emergency Law Regime

America's Emergency Law Regime, 46 u. Mich. J L Reform 737 (2013).Available at: https://repository.law.umich.edU/mjlr/vol46/iss2/19This Note is brough

Toward Comprehensive Reform of Americas Emergency Law Regime

t to you for free and open access by the University of Michigan Journal of Law Reform at University of Michigan Law School Scholarship Repository. It

University of Michigan Journal of Law ReformVolume 462013Toward Comprehensive Reform of America's Emergency LawRegimePatrick A. ThronsonUniversity of

Toward Comprehensive Reform of Americas Emergency Law Regimehip Repository. For more information, please contact mlaw repository@umich eduTOWARD COMPREHENSIVE REFORM OF AMERICA’S EMERGENCY LAW REGIMEPaưick A. T

hronson*Unbenownst to most Americans, the United States IS presently under thirty presidentially declared stales of emergency. They confer vast powers Toward Comprehensive Reform of Americas Emergency Law Regime

on the Executive Branch, including the ability to financially incapacitate any person or organization in the United States, seize control of the nati

Toward Comprehensive Reform of Americas Emergency Law Regime

on's communications infrastructure, mobilize military forces, expand the permissible size of the military without congressional authorization, and ext

University of Michigan Journal of Law ReformVolume 462013Toward Comprehensive Reform of America's Emergency LawRegimePatrick A. ThronsonUniversity of

Toward Comprehensive Reform of Americas Emergency Law Regimeher continuity-of-govemment procedures, which confer powers on the President—such as the unilateral suspension of habeas corpus—that appear fundamenta

lly opposed to the American constitutional order. Although the National Emergencies Act, by its plain language, requires Congress to vote fiery six mo Toward Comprehensive Reform of Americas Emergency Law Regime

nths on whether a declared national emergency should continue, Congress has done so only once in the nearly fortyyear history of the Act.This Note and

Toward Comprehensive Reform of Americas Emergency Law Regime

an accompanying online compendium attempt, for the first time, since the 1970s, to reach a reasonably complete assessment of the scope and legal effe

University of Michigan Journal of Law ReformVolume 462013Toward Comprehensive Reform of America's Emergency LawRegimePatrick A. ThronsonUniversity of

Toward Comprehensive Reform of Americas Emergency Law Regimegrowth of these emergencies and political reforms to subject the vast executive powers granted by the U.S. emergency law regime to the democratic proc

ess.“[The Founders] knew what emergencies were, knew die pressures they engender for authoritative action, knew, too, how they afford a ready pretext Toward Comprehensive Reform of Americas Emergency Law Regime

for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.”-Justice Robert JacksonYoungstown Shee

Toward Comprehensive Reform of Americas Emergency Law Regime

t & Tube Co. V. Sawyer** J.D. Candidate, May 2013, University of Michigan Law School; A.B.. Harvard University, magna cum imide. 2005. Many thanks to

University of Michigan Journal of Law ReformVolume 462013Toward Comprehensive Reform of America's Emergency LawRegimePatrick A. ThronsonUniversity of

Toward Comprehensive Reform of Americas Emergency Law Regimeampe, and Nina Ruvinsky for their excellent editorial assistance and helpful suggestions; atid to Katie DiSalvo and my parents for their incredible su

pport. Any errors are mine.1.343 U.S. 579, 650 (1952).737738 University of Michigan Journal of Law Reform[Vol. 46:2Introduction“A national emergency e Toward Comprehensive Reform of Americas Emergency Law Regime

xists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of f

Toward Comprehensive Reform of Americas Emergency Law Regime

urther attacks on the United States,” President George w. Bush proclaimed on September 14, 2001.2 “I hereby declare that the national emergency has ex

University of Michigan Journal of Law ReformVolume 462013Toward Comprehensive Reform of America's Emergency LawRegimePatrick A. ThronsonUniversity of

Toward Comprehensive Reform of Americas Emergency Law Regimey, and the vast powers it bestows, is still with us—along with twenty-nine other national emergencies that grant the President greatly enhanced powers

to regulate the nation’s economic, military, and foreign affairs.5 .Although Congress has been required by statute, for nearly forty years, to vote e Toward Comprehensive Reform of Americas Emergency Law Regime

very six months on whether a national emergency should continue, it has done so only once.6The current proliferation of national emergencies is exactl

Toward Comprehensive Reform of Americas Emergency Law Regime

y what the National Emergencies Act (NEA) was enacted to prevent.7 The NEA has failed entirely in this regard. The story of its failure is a story of

University of Michigan Journal of Law ReformVolume 462013Toward Comprehensive Reform of America's Emergency LawRegimePatrick A. ThronsonUniversity of

Toward Comprehensive Reform of Americas Emergency Law Regimehe quantity and scope of unchecked emergency powers then in effect.8 It is a story of how Congress, with substantial support and cooperation from the

Executive Branch,9 constructed a framework intended to comprehensively regulate and limit future declarations of national emergency.10 And it is a sto Toward Comprehensive Reform of Americas Emergency Law Regime

ry of2.Set Proclamation No. 7463. 3 C.F.R. 263 ( 2002), available at http://www.gpo.gov/ fdsys/pkg/CFR-2002-útle3-voll/pdf/CFR-2002-ũtlc3-vol l-proc74

Toward Comprehensive Reform of Americas Emergency Law Regime

63.pdf.3.id.4.Fawn Johnson & Alexandra Jaffe, Brennan: "We're on the Path to al-Qaida 'í Destruction, ” Nat’i. J. (Apr. 29, 2012, 2:21 PM), http://www

University of Michigan Journal of Law ReformVolume 462013Toward Comprehensive Reform of America's Emergency LawRegimePatrick A. ThronsonUniversity of

Toward Comprehensive Reform of Americas Emergency Law Regime Emergencies Act. Pub. L. No. 94-412. 90 Scat. 1255-58 (1976) (codified at 50 Ư.S.C. §§ 1601-1651 (2006)); see also infra Part II.8.See, e.g, 121 Conc

. Rec. S2302 (daily cd. Mar. 6. 1975) (statement of Sen. Charles Mathias), reprinted in s. Comm. ON Gov’t Operations & THE Special Comm, on Nat’l Emer Toward Comprehensive Reform of Americas Emergency Law Regime

gencies AND Dh-egated Emergency Powers, 94th Conc., 2d Sess., The National Emergen-GOES Acr Source Book: Legislative History, Texts, and Other Documen

Toward Comprehensive Reform of Americas Emergency Law Regime

ts, at 285 (1976) [hereinafter s. Comm. ON Gov’t Operations] (“The Committee concluded that not one, but four national emergencies exist and continue

University of Michigan Journal of Law ReformVolume 462013Toward Comprehensive Reform of America's Emergency LawRegimePatrick A. ThronsonUniversity of

Toward Comprehensive Reform of Americas Emergency Law Regimeictatorial powers.").9.s«s. Rep. No. 93-1170, at 4 (1974), reprinted in s. Comm. ON Gov’t Operations, supra note 8. at 22.10.See s. Comm, on Gov’t Ope

rations, supra note 8, at 291. Toward Comprehensive Reform of Americas Emergency Law Regime

University of Michigan Journal of Law ReformVolume 462013Toward Comprehensive Reform of America's Emergency LawRegimePatrick A. ThronsonUniversity of

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