How we assembled the Guide to Emergency Powers
Our goal was to assemble a comprehensive guide to the statutory provisions available to the president in a national emergency, including the subject matter of each provision, the date it was enacted, the statutory language triggering the authority, and a list of all instances in which the power has been invoked.
We began with a list of statutory emergency powers compiled in 2013 by Patrick Thronson in an appendix to his law review article, Toward a Comprehensive Reform of America’s Emergency Law Regime, 46 Michigan Journal of Legal Reform 728 (2013). Our first step was to update his list. We consulted with Thronson and mimicked his method for discovering new statutes by searching the United States Code Annotated as published by Westlaw for “national emergenc!” and analogous terms. To ensure that we were capturing all recent legislation, we also searched Congress.gov for all laws passed in the 113th through 115th Congresses that contained variations of the words “national emergency.” We discovered through this process that several provisions that existed in 2013 were no longer in force, while others had been added.
To obtain the date and triggering language, we reviewed the language and revision history of each statute on the Legal Information Institute website. We then reviewed the citing references of each statute on Westlaw to determine how many times and in what circumstances the statutes had been invoked. To get the most comprehensive picture possible of invocations of national emergency, we reviewed presidential proclamations, executive orders, and notices as published in the Federal Register, the National Archives, and the Presidency Project at UCSB for the terms “national emergency” and “National Emergencies Act.” We also reviewed citing references as described in the legislative history section of the Legal Information Institute and searched permutations and prior codifications of each statute on Westlaw as necessary. When citing references were unclear, we occasionally eschewed methodological orthodoxy in favor of developing a more comprehensive picture, for example by searching for Congressional Research Service materials, books, and general articles through Google to shed more light on any given statute.
This guide is not a complete list of the president’s emergency powers. Our goal was to comprehensively list the authorities available when either the president or Congress declares a national emergency, and to describe their historical usage. There are other types of emergency that can be declared; we listed some of the most important statutes governing those other kinds of emergency — including the Robert T. Stafford Disaster Relief and Emergency Assistance Act and the Public Health Service Act — under a separate heading titled “Emergency Framework Statutes,” but we did not identify every instance in which those powers have been used. There are also statutes that provide powers to deal with specific crises (e.g., “insurrections”) without using the term “emergency”; those are not included in this guide. And the guide does not contain any non-statutory legal authorities, such as presidential directives or agency regulations.