American emergency powers spring from a similar liberal tradition, and they too have sparked fierce disputes about the politics of necessity and legality. During the Civil War, with Congress out of session, Lincoln blockaded the southern coast, expanded the army and navy, appropriated funds for arms and ammunition purchases, and—in a move that incensed many observers—suspended habeas corpus. He was blatantly challenging constitutional powers. “These measures, whether strictly legal or not,” he later messaged Congress, “were ventured upon under what appeared to be a popular demand, a public necessity; trusting, then as now, that Congress would readily ratify them.” Which it did.
Forty years later Theodore Roosevelt and his successor, William Howard Taft, wrangled over “implied” constitutional powers. “I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it,” Roosevelt wrote in his 1913 autobiography. “My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.” Taft, however, dismissed the notion that the president had an “undefined residuum of power which he can exercise because it seems to him to be in the public interest.”
The “maze of statutes” regarding executive power had been growing since the nation’s founding, giving the president considerable latitude to address military, economic, and labor crises, including by declaring a national emergency. In the 1970s some members of Congress grew more concerned about potential abuses of executive power: Nixon, for instance, declared two national emergencies, one to break up a postal strike and the other to control the balance of payments, which he used to bypass legislative oversight, terminate certain trade agreements, and impose tariffs. After plowing through the U.S. Code, a Senate committee found that 470 provisions of federal law delegated extraordinary emergency powers to the president; four obsolete proclamations of emergency were still in effect. “Unchecked by the Congress or the American people,” the committee concluded, this “extraordinary power” could have tyrannical consequences.
Senators on both sides of the aisle—including Democrat Frank Church and Republican Charles Mathias—praised the subsequent National Emergencies Act as a major reform. It set up three crucial safeguards against executive abuse of emergency power, permitting Congress to terminate a declared emergency by “legislative veto,” stipulating that an emergency should automatically expire after a year, and requiring Congress to meet every six months to consider a vote on terminating a declared national emergency. But as Goitein has recounted, the law’s promise was quickly dashed. In 1983 a Supreme Court ruling effectively invalidated the veto. The expiration requirement proved effectively useless: in practice the president’s signature is all that’s been required to maintain it, leaving some emergencies in place for years. As for the twice-a-year meetings, Congress simply hasn’t held them.