Toward Comprehensive Reform of Americas Emergency Law Regime
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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 RegimeAmerica'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 broughToward 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. Thronson*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 natiToward 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 extUniversity 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 fundamentally 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 Regimenths on whether a declared national emergency should continue, Congress has done so only once in the nearly fortyyear history of the Act.This Note andToward 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 effeUniversity 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 process.“[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 Regimefor usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.”-Justice Robert JacksonYoungstown SheeToward 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 support. 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 Regimexists 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 fToward 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 exUniversity 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 Regimevery six months on whether a national emergency should continue, it has done so only once.6The current proliferation of national emergencies is exactlToward 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 Regimery 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-proc74Toward 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://wwwUniversity 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 Regimegencies AND Dh-egated Emergency Powers, 94th Conc., 2d Sess., The National Emergen-GOES Acr Source Book: Legislative History, Texts, and Other DocumenToward 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 Operations, supra note 8, at 291. Toward Comprehensive Reform of Americas Emergency Law RegimeUniversity of Michigan Journal of Law ReformVolume 462013Toward Comprehensive Reform of America's Emergency LawRegimePatrick A. ThronsonUniversity ofGọi ngay
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