Homeland Security Watch

News and analysis of critical issues in homeland security

September 5, 2008

Bush Renews Emergency Declaration for 7th Year Running

Filed under: General Homeland Security,Legal Issues — by Jonah Czerwinski on September 5, 2008

On September 14, 2001, President Bush issued Executive Order 13223, declaring a national emergency in response to the 9/11 terrorist attacks. It is a one-year declaration made under the National Emergencies Act (50 U.S.C. 1622(d)).

That emergency declaration comes with powers and authorities the President specifies to respond to the cause of the emergency, al-Qaeda’ terrorist threat in this case. The declaration was actually reinstated every year since. Last week, President Bush renewed the national emergency for yet another year. CRS did a study for the Congress outlining the powers that Bush invoked. These include:

• 10 U.S.C. 123. Authorizes the President, in time or war or national emergency declared by Congress or the President, to suspend the operation of any provision of law relating to the promotion, involuntary retirement, or separation of commissioned officers of the Army, Navy, Air Force, Marine Corps, or Coast Guard Reserve.

• 10 U.S.C. 123a. Authorizes the President, at the end of any fiscal year when there is in effect a war or national emergency, to defer the effectiveness of any end-strength limitation with respect to that fiscal year prescribed by law for any military or civilian component of the armed forces or of the Department of Defense.

• 10 U.S.C. 527. Authorizes the President to suspend the operation of three specified sections of Title 10, United States Code, concerning the authorized strength of commissioned officers on active duty in senior grades, the distribution of commissioned officers on active duty in general officer or flag officer grades, and the authorized strength of commissioned officers on active duty in general officer or flag officer grades.

• 10 U.S.C. 2201(c). Authorizes the President to make a determination that it is necessary to increase the number of members of the armed services on active duty beyond the number for which funds have been appropriated for the Department of Defense.

• 10 U.S.C. 12006. Authorizes the President to suspend the operation of three specified sections of Title 10, United States Code, concerning the authorized strengths of armed forces reserve commissioned officers in an active status, reserve general and flag officers in an active status, and filling senior Army and Air Force Reserve commissioned officer vacancies.

• 10 U.S.C. 12302. Authorizes the President to call members of the Ready Reserve (retired military persons) to active duty.

• 14 U.S.C. 331. Authorizes the Secretary of Transportation to order any regular officer of the Coast Guard on the retired list to active duty.

• 14 U.S.C. 359. Authorizes the Commandant of the Coast Guard to order any enlisted member of the Coast Guard on the retired list to active duty.

• 14 U.S.C. 367. Authorizes the Secretary of Transportation to detain enlisted members of the Coast Guard beyond their terms of enlistment.

• 10 U.S.C. 603 Authorizes the Secretary of Defense to appoint qualified persons to any officer grade in the armed forces.

President Clinton declared national emergencies to address threats posed by terrorists who threaten to disrupt the Middle East peace process by assisting in, sponsoring, or providing support to terrorist acts. President Clinton also invoked – as has Bush – the International Emergency Economic Powers Act (IEEPA). The IEEPA authorizes the President to regulate or prohibit any foreign bank transfers involving any foreign country or one of its citizens.

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5 Comments »

Comment by Brandon

September 6, 2008 @ 1:41 pm

7th year running…
us into the ground.

Comment by William R. Cumming

September 6, 2008 @ 4:59 pm

The National Emergencies Act of 1976 was an attempt by Congress to at least have a procedure to declare and extend National Emergency declarations after they discovered that a Truman declaration from 1950 was still effective. At the time the Senate Judiciary Committee studied the issue 441 laws required the declaration of a national emergency to be made effective. The statute is essentially procedural and gives no substantive authority but requires the President to publish an Executive Order declaring a National Emergency and indicating what statutory authority he/she specifically intends to use by declaring the National Emergency. The Robert T. Stafford Act has its own declaration of emergency provision that is not tied to the National Emergencies Act.

Comment by Christopher Tingus

September 6, 2008 @ 8:38 pm

The 1988 Act is an amended version of the 1974 Disaster Relief Act essentially giving FEMA the powers necessary after a Presidential Declaration of Disaster to afford citizens financial and physical assistance.

The Natioal Emergencies Act of 1976 while you correctly state its scope as primarily a procedural vehicle to be utilized to enable the declaration of a national emergency and subsequent national assistance being offered to the citizenry, I believe that the President should have more power in his hands to do what is essential without bureaucratic roadblocks to helping fellow citizenry as quickly as possible or at least in the immediate hours of need until Congressional members can meet and formalize a longer-term response and rebuild of the community.

Christopher Tingus
Harwich, MA

Comment by MAX

September 7, 2008 @ 4:49 pm

Christopher –

>>I believe that the President should have more power in his hands to do what is essential without bureaucratic roadblocks…

How odd. This post seemed to be clearly stating that this president is not short on powers. And you’d give him more? Which powers, specifically, does he lack that you think he should have?

Comment by William R. Cumming

September 8, 2008 @ 7:58 am

It might be important to this blog’s context to always identify whether Presidential authority is being exercised as Commander-In-Chief of the Armed Forces [Article II, Section 2 of the Constitution] and the Chief Executive role [Article II, Section 1 of the Constitution]. Thus, issues of Presidential authority and their absence or exercise will be made clearer.

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