Declaration of a State of Emergency -- can President Obama issue one to prevent default?

[Samantha]

Last edited Fri Oct 18, 2013, 12:42 PM - Edit history (1)

Starting with the recognition we are still at war in Afghanistan, one would think if an economic disaster loomed on the horizon in the United States, the President would have the authority to act to preserve both our economy and our national security. The question then becomes what authority could he use that did not require the Legislature's approval. Perhaps the answer lies with a Declaration of a State of Emergency.

A preliminary review of several sources suggests that is a very real option President Obama could exercise if the debt ceiling is not lifted and the threat of default is a very real danger to the Country. Perhaps you might consider this possibility and comment.

What is the National Emergencies Act?

http://en.wikipedia.org/wiki/National_Emergencies_Act

"The National Emergencies Act (Pub.L. 94–412, 90 Stat. 1255, enacted September 14, 1976, codified at 50 U.S.C. § 1601-1651) is a United States national law passed to stop open-ended states of national emergency and formalize the power of Congress to provide certain checks and balances on the emergency powers of the President. It imposes certain "procedural formalities" on the President when invoking such powers.

The perceived need for the law arose from the scope and number of laws granting special powers to the executive in times of national emergency (or public danger).

Under the Trading with the Enemy Act of 1917 ("TWEA&quot , starting with Franklin D. Roosevelt in 1933, presidents had the power to declare emergencies without limiting their scope or duration, without citing the relevant statutes, and without congressional oversight.[1] The Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer limited what a president could do in such an emergency, but did not limit the emergency declaration power itself. A 1973 Senate investigation found (in Senate Report 93-549) that four declared emergencies remained in effect: the 1933 banking crisis with respect to the hoarding of gold,[2] a 1950 emergency with respect to the Korean War,[3] a 1970 emergency regarding a postal workers strike, and a 1971 emergency in response to inflation.[4] Title V, Section 502 of P.L. 94-412 specifically exempts the statutorily authority cited in the Proclamations of these four declared states of national emergency from termination. It then passed the International Emergency Economic Powers Act to restore the emergency power in a limited, overseeable form."

Take a look at Reference #1 at the same link:

" H. Rep. No. 95-459, at 7 (1977) "[the TWEA] has become essentially an unlimited grant of authority for the President to exercise, at his discretion, broad powers in both the domestic and international economic arena, without congressional review. These powers may be exercised so long as there is an unterminated declaration of national emergency on the books, whether or not the situation with respect to which the emergency was declared bears any relationship to the situation with respect to which the President is using the authorities"

So I took a look to see if there are any unterminated declarations of national emergency in effect. As you can see from the above paragraph (b) quote, the declaration a President is making does not necessarily have to "bear any relationship to the situation with respect to which the President is using the authorities."

THERE ARE MANY CURRENT DECLARATIONS OF NATIONAL EMERGENCY IN EFFECT.

http://speakwithauthority-jsm.blogspot.com/2013/03/the-danger-of-americas-endless-national.html

"In the past year, President Obama has signed continuations of National Emergency declarations for Zimbabwe, Cuba, Libya, Ivory Coast, the Middle East Peace Process, Sudan, Weapons of Mass Destruction, Democratic Republic of the Congo, Lebanon, Significant Transnational Criminal Organizations, the Former Liberian Regime of Charles Taylor, the Western Balkans, the Risk of Nuclear Proliferation Created by the Accumulation of Weapons-Usable Fissile Material in the Territory of the Russian Federation, Belarus, Iraq, Syria, Somalia, and Iran (2); nineteen in all. Nineteen concurrent "national emergencies." Most Americans, and perhaps most politicians, would be hard pressed to explain the circumstances surrounding one-third of these emergencies, let alone all nineteen. The mere existence of some of these declarations would doubtless be a surprise to many."

What are the requirements for declaring a national emergency?

"The National Emergencies Act requires the president to specify the provisions in the law upon which his actions under each declaration are authorized.

* * *
Last year, President Obama extended the National Emergency with respect to terrorism that President Bush signed after the devastating attacks on America by al-Qaeda on September 11, 2001." (see link above).

Finally, as I was writing this thread, I found an article published by Brookings entitled "President Obama Should Issue an Executive Order to Raise the Debt Ceiling":

http://www.brookings.edu/blogs/fixgov/posts/2013/10/12-debt-ceiling-and-the-power-of-the-president-jackman

"It is the right of any president to declare a state of emergency and to take action necessary to protect the nation. America has a long-standing history of granting or tacitly accepting expanded presidential powers in times of crisis. As the sole figure elected by the entire nation, he is the politician to whom we turn when faced with a national emergency, and in so doing, we often allow him leeway to act in ways that protect the nation even if we would not imbue those powers upon him in calmer times."

* * *

Once a state of emergency is declared, the President would have multiple mechanisms through which to raise the debt ceiling – via an executive order, memorandum, or proclamation, to name a few. The exact mechanism chosen, though, is of less importance than the action itself. The ultimate arbitrator of the constitutionality of the President’s actions will be the Supreme Court (notably, not Congress). Since the Constitution does not clearly state that the President cannot raise the debt ceiling in times of crisis – see the 14th Amendment argument – and the public is eager for any solution to the debt ceiling impasse, it seems likely that the courts would look favorably on presidential action to prevent an economic emergency of this magnitude.

Thus, the solution to the debt ceiling crisis lies in President Obama’s hands. He needs to recognize this as the national emergency that it is, and issue an executive order to solve the problem. Congress will get in line if he does. It’s a game of chicken, but in this game, the president holds the trump card."

Summary

It does appear there is an emergency exit from the economic default. Obviously, I am not an expert on this subject so you might know of conflicting factors.

In my opinion, I believe it is entirely possible this is a political trap for our President. If he does nothing, the House might possibly use his inaction as grounds for impeachment. He failed to prevent an economic collapse in the Country. Can't you hear the Tea Party warming up? If he does act, the possibility exists that the Republicans will accuse him of a power grab and try to impeach him for whatever actions he takes. Politically, he could be in a no-win situation.

Beyond that, if the decision to act ends up in the Supreme Court, one cannot assume that particular Court would not stoop to a political as opposed to a legal opinion. Think Bush v. Gore. The Republican party's motto in 2000 while competing in the Presidential race was "win at all costs." Assuming that is still the operative imperative, the question now becomes what will President Obama do about it? What do you think is the answer?

Sam

[diabeticman]

1. But isn't that what the Tea Party racists want to happen so their wet dreams of impeachment can

begin?

[Samantha]

3. It could possibly be more than that

Think about it. If our economy went into a serious death spiral, when it eventually weakly came back up, there would probably only be financial resources for the barest of necessities: providing for the national defense and other areas of equal weight. What probably would have to be excluded would be all of the social safety net provisions: Social Security, Medicare, Medicaid, the Affordable Care Act, food stamps, unemployment -- in other words, all of those benefits you hear them deride today. They could get a tremendous amount of all they have dreamed about, including the impeachment trial, if they just do nothing.

Knowing what we know about them now, do you think that could possibly be their goal? I personally do not exclude it.

Sam

[blkmusclmachine]

2. Obama won't do anything without the blessings of the Congressional GOP.

Said so himself.

Obama will own the Default with the GOP, if it he just sits back and lets them blow up the Nation because of his sense of "fair play."

And we'll all get SCREWED. Bipartisanely.

[longship]

4. Nope. This cuts to Constitutional powers. By that metric alone, the US House owns this.

POTUS has little power to interfere with Congress. There has not been any bill that's crossed his desk. His executive power is limited. This is the hands of Congress.

In other words, the Teabaggers own this.

[Samantha]

5. You do not think he has the power to declare a national emergency? (n/t)

[longship]

6. Well, that's arguable.

The Constitution has specific guidelines on the powers of the three branches. If you were Barack Obama, would you push the envelope to test those borders?

Myself, I would hold firm and remind the public that without a bill to sign, or veto, my Consitutional powers are limited. I would state that every day, if need be. The bully pulpit of the Oval Office is very useful for such things.

Just my thinking on it.

[Samantha]

7. I just was not sure if you had eliminated the premise of the thread by your response

If I were him, it would be very difficult to decide what to do. But I think if the economy does face collapse, he is a good and decent man who would do what he could to prevent that. If he does, he will be facing the same challenge Boehner faces -- this action might cause me to lose my job! But I think he would be prepared to do that to save the Country from disaster. Just my guess.

I do think there are those in the House who are prepared to try to pursue impeachment regardless of what he does. Of course, we have the majority in the Senate, but we sure better hold on to it next year!

Thanks for posting on my thread.

Sam

[longship]

10. Well, impeachment is an important issue.

I think that the Teabaggers are wanting to impeach him for just about anything. I am sure that President Obama and his political staff know this -- they're no dummies.

When your opponents are shooting themselves in the foot why pull out a handgun yourself? The shutdown and the debt default are devastating to the GOP, and especially the Teabaggers.

I couldn't be more than happy with President Obama's actions on this. His words have been pretty much perfect, which is just about all he can Constitutionally do at this point.

[longship]

8. That's the important question.

Does POTUS have the power? If you are POTUS are you willing to risk your elected office to affirm your right to take "X" emergency action?

When a Congress or a President gets near to such a line, there may be consequences. The hindside of that is much greater for POTUS, than it might be for Congress. A Presidential impeachment is a very damaging affair. But there is no realistic impeachment other than the ballot box for Congress. The scales are not balanced here, so POTUS has to be careful.

No matter what the outcome of a presidential impeachment, such a thing is not a good thing, even if the people who do such a thing are proven utterly wrong. It is nothing more and nothing less than evidence of a broken political system. When it happens for two Democratic Presidents in a row, it shows something else going on.

Maybe that's what we all ought to be fighting.

[pnwmom]

9. The problem is that even if he declared an emergency and directed the Treasury

to issue bills to cover its debt -- there is nothing to force the market to recognize this as valid debt; but if it did, there's nothing to keep it from requiring greatly increased interest payments in keeping with the higher risk.

[Samantha]

11. Even if that were to happen (and I did hear him discuss this)

that is still the lesser of the two evils, isn't it?

Sam

[pnwmom]

12. Yes. It could be his only option. n/t

[Samantha]

13. I am going to save this research in case we need to look at it again

in 3 months. I hope this latest agreement goes through today. But if the Republicans ever pull anything like this again, perhaps we do have a card to play.

Thanks for posting on my thread.

Sam

[treestar]

15. I agree, the bottom line is the market uncertainty

Which Obama gave as reasons that the 14th amendment wasn't a solution, or the trillion dollar coin. It would just be for show; the market would still react to the uncertainty:

"If you start having a situation in which there's legal controversy about the U.S. Treasury's authority to issue debt, the damage will have been done even if that were constitutional, because people wouldn't be sure," Obama said in a news conference with reporters Tuesday. "It'd be tied up in litigation for a long time. That's going to make people nervous.

"There are no magic bullets here," he said.

[Samantha]

19. He would not have to use the 14th amendment but he could if he chose to do so

He could reference it as the reason which prompted the declaration, but he could also find others that would not be controversial to reference as a justification.

While this suggestion in my thread is not something we would like to see happen, I think it is comforting we have an alternative to use should that be necessary. All of the warnings we have been given about what would happen if we do this or we do that, none of the consequences are as dire as if we do nothing. I probably didn't phrase that very well but hopefully you catch the thought.

Sam

[treestar]

14. I kind of like the idea of using the Sept. 11 terrorism emergency

the Republicans would richly deserve that.

[Samantha]

18. You and I are thinking the same thing

Wouldn't that be something? Using the September 11 declaration to stop the Republicans from crashing the economy. Now that would really leave a stain on them.

Sam

[Nuclear Unicorn]

21. It takes 2 to stalemate

We want a policy, they don't. They want something, we say it's unacceptable. Either side could, at any time, concede to its opposite. "Teach them a political lesson," is not a constitutional obligation for maintaining a stalemate. You cannot declare someone a terrorist for engaging in the exact same political process you are engaged in.

[Samantha]

26. What if one side is engaged in the same sort of activity that a declared enemy has perpetrated?

The late Osama bin Laden threatened he would collapse the economy of the United States. That is one of the reasons he bombed the World Trade Center, a stab, he thought into our financial system that would truly harm it.

Perhaps there is no law to specifically allow one to formally charge politicians from terrorizing this Country with financial collapse, but knowing that the threat exists and looking the other way, saying nothing, is not an option either. So I feel comfortable there is an alternative to negate this type of threat. The onus is on us to make sure that option is not abused.

I was not in the "teach them a political lesson" crowd. I am in the crowd that says there are some things that rise above politics and pertain to the financial well-being of our Country. Safeguarding our financial future falls within that realm.

Thank you for posting on my thread.

Sam

[Nuclear Unicorn]

29. How can it collapse the economy if the stalemate is lifted?

If it came down to ceding on the Vitter amendment or hitting the debt ceiling which way would you choose? According to your supposition you would be as guilty as OBL if you allowed the US to violate the 14A if you rejected a bill over denying congresscritters federal health insurance subsidies.

[Samantha]

33. I have no power in the US Government so that second sentence is ridiculous

If the agreement is reached before the deadline, that question in your title is moot as well.

As far as coming down to conceding on the Vitter amendment or hitting the debt ceiling, I would choose neither since obviously those choices are not our only options.

Sam

[Nuclear Unicorn]

36. I think you understand well enough my intent with my second sentence.

If rephrasing it helps I will be happy to oblige.

[Nuclear Unicorn]

16. Under what conditions would the SOE be lifted?

[Samantha]

17. The terms for this are outlined in the Constitution

I believe it can be lifted with a statement by the President, but I would have to go back and look it up. But there is an automatic expiration after a certain time period if the President does not renew it. I think that might be a year.

Sam

[Nuclear Unicorn]

20. So a president gets to unilaterally abrogate congessional power

then decides under what conditions he will cede that power and then can indefinitely renew his decree? That seems too convenient.

[Samantha]

22. It is not convenient at all -- it is the deliberate safety net built into our legal system

to protect our country from a calamity. If you read down the list of existing declarations, you can see there are a number of declarations of emergency power used by many different presidents for various reasons. That is just a way of saying declarations of emergency by the President are not at all extraordinary.

I found this option when it occurred to me there must be some larger protection mechanism the President could use to save the economy from collapse, especially when we are in a state of war. To not allow for extraordinary power to neutralize the threat of an economic collapse, especially after what we witnessed during 9/11, would be unacceptable. Reviewing the history of some of these declarations reveals that they have been renewed annually to keep them from expiring. We have, for instance, one that involves our problems with Iran. But when the threat is over they can be revoked or allowed to simply expire.

Sam

[Nuclear Unicorn]

25. We may be in a "Global War on Terror" (what a joke so-called "Progressives" now applaud this)

but at no point did Congress cede its powers to the presidency, particularly budgetary authority. I cannot help but take it with the utmost credulity that the founders, having just fought a war for independence from an overbearing executive, would emplace the scheme you describe.

[Samantha]

27. By the way, this is not a "scheme"

It is a legitimate authority given the President of the United States for defusing a potential disaster. It is Constitutionally-authorized.

Sam

[Nuclear Unicorn]

30. "The National Emergencies Act requires the president to specify the provisions in the law"

Which law is Congress supposedly breaking? You can't say the 14A because the 14A cannot force congress to vote on a bill or under what terms to vote. If they don't like the provisions of a bill they are free to vote no. They re free to haggle over the substance of a bill until they find its terms vote-worthy.

[Samantha]

32. I covered that in the thread

"The National Emergencies Act requires the president to specify the provisions in the law upon which his actions under each declaration are authorized." The answer to which provision he relies upon could but must not necessarily, rest with whatever current Declaration he links to, so there are several options. Just as an example, if he links to the Declaration Bush declared in response to 9/11:

"Last year, President Obama extended the National Emergency with respect to terrorism that President Bush signed after the devastating attacks on America by al-Qaeda on September 11, 2001. In his notice to Congress, President Obama wrote:

CONTINUATION OF THE NATIONAL EMERGENCY WITH RESPECT TO PERSONS WHO COMMIT, THREATEN TO COMMIT, OR SUPPORT TERRORISM"

On September 23, 2001, by Executive Order 13224, the President declared a national emergency with respect to persons who commit, threaten to commit, or support terrorism, pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701-1706). The President took this action to deal with the unusual and extraordinary threat to the national security, foreign policy, and economy of the United States constituted by the grave acts of terrorism and threats of terrorism committed by foreign terrorists, including the terrorist attacks on September 11, 2001, in New York and Pennsylvania and against the Pentagon, and the continuing and immediate threat of further attacks against United States nationals or the United States. Because the actions of these persons who commit, threaten to commit, or support terrorism continue to pose an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States... I am continuing for 1 year the national emergency[.] (emphasis added)

The date the president signed and issued this notice warning of the "immediate threat of further attacks"? September 11, 2012, the very day of the attack on the consulate in Benghazi, Libya."

So continuing along with a hypothetical, if he linked to this declaration already in existence he could quote the same provision Bush* quoted. Additionally, in order to execute his Commander in Chief responsibilities, he must have the resources to execute those duties.

There are a number of things he could do and obviously I cannot predict which he would choose and on what basis he would rest.

Sam

[Nuclear Unicorn]

35. What underlying violation of law could occur by congress exercise its constitutional power?

You cannot force congress to vote on/pass laws anymore than they can force a president to sign the laws they pass. There is a process for determining the language of bills. Once the language is settled then the bills receive their votes in the respective chambers, go to conference committee etc. That is the constitutional process and the Constitution trumps the National Emergencies Act. None of the constitutionally ordained legislative process violates the law even if federal expenditures slam face-first into the debt ceiling.

Once the debt ceiling is reached the federal government is legally obligated to stop incurring new debt (it still has plenty of revenue to pay debt service and a fair amount left over for operational costs). That's not a violation of law, that's obedience to the law. If the chips fall poorly on the economy, oh well, it wouldn't be the first -- or last -- time the government did something stupid. The remediation for stupid isn't imposing government by presidential decree the solution is to GOTV.

[Samantha]

37. You are not discussing the true bigger picture -- that is what I am doing

The bigger picture is that when this Country faces a calamity that could put us in what some economists have described as an economy at least equal to if not worse than the Great Depression. Under those circumstances, the President has the power to avert a disaster. You are discussing the mechanisms by which this calamity arose. We are not on the same page.

Sam

[Nuclear Unicorn]

38. Your page is irrelevant, taken from a non-existent book.

The bigger picture is that the Constitution trumps the Nat'l Emergency Act. All tyrants appeal to crisis to solidify their power. That is why our Constitution divides power so meticulously.

There is no disaster to avert, we can service our bond obligations with current revenue. Even if it were a parents-eating-their-young calamity that doesn't allow the presidency to abrogate the constitution.

The act you cited states there must be an underlying violation of law. Congress being congress is not a violation of the law. You can't pick and choose clauses to create some Frankenstein's monster of a law to grant your preferred political faction absolute power. I doubt you'd be arguing this as enthusiastically as you are if the GOPers were making your argument. On the contrary you'd be repulsed and horrified. Unless you're willing to grant them the same privileges the next time they think some Dem policy will bring economic calamity I can't help but wonder if you imagine this to be a one shot deal where we win for all time. If the latter, you're the person the Constitution was meant to frustrate.

[Samantha]

39. There is no trumping involved - the National Emergency Act does not violate the Constitution

Federal laws and treaties are automatically void if they are not consistent with the Constitution. Looking at the history of the implementation of this law and the various Presidents who have used it, were it truly not in compliance with the Constitution, why is it there are 19 of them existing today?

Your remark that there is no disaster to avert, we can service our bond obligations with current revenue is the exact same justification many Republicans are using. That statement is untrue. Perhaps we could cough up 47% of the debt owed to foreign investors, but that still leaves domestic bondholders and inter-governmental holding plans. The largest debt holder of the United States is the American people, and specifically, the Social Security Trust Funds is holding approximately 2.67 Trillion Dollars of debt. If the debt ceiling were not lifted and Social Security payments were not made, that in itself would constitute a default to the participants. Paying our foreign debt holders and not U.S. debt holders is still a default, and we would not have the funds to pay both.

The Republicans obviously do enjoy the same Constitutional and legal privileges as the Democrats and under situations such as the one I described in my thread, the citizens must be vigilant during the process.

As for the rest of your remarks, I simply will ignore them.

Sam

[Nuclear Unicorn]

40. If we have to accrue new debt to pay old debt then we are bankrupt and the debt limit is irrelevant.

You still haven't identified the underlying crime that would allow for the calling of a national emergency.

[Samantha]

41. Crime is your word - that is not the word I used

I said reason and I did identify a reason. Go back and re-read.

I am kind of done with this.

Sam

[Samantha]

23. Do you not think the President should abrograte congressional power when

Congress fails to execute its fiduciary duties? Or should we just roll over and accept the consequences? Just a simple question.

Sam

[Nuclear Unicorn]

24. Simple answer -- NO

Otherwise the separation of powers into co-equal branches of government becomes meaningless. The scenario you describe makes Congress a rubber stamp body to applaud el Presidente's brilliance.

[Samantha]

28. You exaggerate

Congress failed in its responsibility to pay our debts. To do nothing about that would have been catastrophic.

Sam

[Nuclear Unicorn]

31. Congress didn't fail anything, anymore than the President failed to sign their bill.

Neither is obligated to agree with the other.

[Samantha]

34. Congress' failure is a matter of continuing debate by the Constitutional experts

so I doubt you or I will settle the matter here. So why don't you hang on to your opinion as I certainly will continue to hold onto mine.

Sam