Presidential Emergency Powers: In Search of a Definition of ‘Emergency’

27 August 2020, Version 1
This content is an early or alternative research output and has not been peer-reviewed at the time of posting.

Abstract

To what extent can Congress provide statutory guidance to the President about what constitutes an emergency without infringing upon presidential authority? Are emergencies -- unexpected and unusual events – even capable of being defined legislatively in a manner that is neither vague and overbroad, nor under-inclusive? To date, Congress has not attempted to define the term “emergency” in a manner that might test these issues. The reasons why Congress didn’t provide a definition of the term “emergency” in the National Emergencies Act is yet another puzzling matter. After reviewing the legislative history of the National Emergencies Act, this paper will suggest an approach to defining an “emergency” based on separation of powers considerations. It will then consider whether this definition of the term “emergency” might survive scrutiny by the Supreme Court based upon its separation of powers jurisprudence.

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