A Real Emergency: Executive Power under the National Emergencies Act

In recent years, libertarians and progressives have found common cause in their concern that the growth of executive power is far in excess of constitutional limits. Our Constitution gives the president few explicit emergency powers, but presidents have invoked national emergencies as justification for a wide variety of actions. After Watergate, Congress created a framework for regulating this authority, in the 1976 National Emergencies Act. With President Trump’s decision to circumvent Congress and declare a national emergency so that he can construct a wall on the southern border, the propriety of the National Emergencies Act and broader separation of powers issues can no longer be avoided. For example, building the wall would entail seizing private property through eminent domain and reallocating funds that Congress has authorized for other purposes. Has the National Emergencies Act become part of the problem, rather than a solution? Should it be reformed? And how, more broadly, can we still allow presidents to appropriately handle moments of crisis while reining in executive overreach?

This event is approved for 1.5 hours of California MCLE credit.

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