Comment: National Emergency Powers

(See in situ)


National Emergency Powers

were defined in the Civil War. If you actually read the Congressional Record and what is referred to in Executive Orders the claim of authority goes something like this:

1. Civil War precedent for national emergency.
2. Trading with the Enemy Act.
3. National Banking Emergency of 1933.

"The existence of war and the restoration of peace are to be determined by the political department of the government, and such determination is binding and conclusive upon the courts, and deprives the courts of the power of hearing proof and determining as a question of fact either that war exists or has ceased to exist … When the sovereign authority shall choose to bring it into operation, the judicial department must give effect to its will. But until that will shall be expressed, no power of condemnation can exist in the court."

65th Congress, 1st Session Doc. 87 (1917);
(under the section entitled Constitutional Sources of Laws of War, Page 7, Clause II);

“Should the President desire to utilize the services of the Federal courts of the *united States* in promoting this purpose or military undertaking, since these courts derive their jurisdiction from Congress and do not constitute a part of the military establishment, they must secure from Congress the necessary action to confer such
jurisdiction upon said courts."

The Law of Civil Government in Territory Subject to Military Occupation by Military Forces of the United States, published by order of the Secretary of War in 1902, under the heading entitled "The Confiscation of Private Property of Enemies in War. (1902);

"That the district courts of the United States are hereby given jurisdiction to make and enter all such rules as to notice and otherwise; and all such orders and decrees; and to issue such process as may be necessary and proper in the premises to enforce the provisions of this Act."

Trading with the Enemy Act of 1917, Sec. 17 (40 Stat. 411,
codified at 12 U.S.C. §95a et seq.) (enacted October 6, 1917);

"Continuing the Regulation of Exports; By virtue of the authority vested in the President by the Constitution and statutes of the United States, including Section 5 (b) of the Act of October 6, 1917, as amended (12 U.S.C. 95a), and in view of the continued existence of the national emergencies...under the authority vested in me as President of the United States by Section 5 (b) of the Act of October 6, 1917, as amended (12 U. S. C. 95a)”

Executive Order No. 11677, issued by President Richard M. Nixon (August 1, 1972);

"As a consequence, a "national emergency" is now a practical necessity in order to carry out what has the regular and normal method of governmental actions. What were intended by Congress as delegations of power to be used only in the most extreme situations, and for the most limited durations, have become everyday powers,
and a state of "emergency" has become a permanent condition."

Attorney General of the United States (May 21, 1973)
(regarding studies undertaken by the Justice Department on the
question of the termination of the standing national emergency);

"(a): The provisions of this Act shall not apply to the following provisions of law, the powers and authorities conferred thereby and actions taken thereunder (1) Section 5 (b) of the Act of October 6, 1917, as amended (1 2 U. S. C. 95a; 50 U. S. C. App. 5b)."

The National Emergencies Act (Pub.L. 94-412, 90 Stat.1255,
codified at 50 U.S.C.§1601-1651)(enacted September14, 1976);

The language of the Congressional Report following Kent State could not be more plain:

"Since March 9, 1933, the United States has been in a state of declared national emergency."

How do you think they arrived at that conclusion? They probably actually read the executive orders and Congressional record ...