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A Guide to Emergency Powers and Their Use

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A Guide to Emergency Powers and Their Use

The 148 statutory powers that may become available to the president upon declaration of a national emergency.

Last Updated: February 8, 2023

Published: December 5, 2018

Bolster Checks & Balances
- Executive Power

Bolster Checks & Balances
- Executive Power

In February 2019, President Donald Trump declared a national emergency to secure funding that Congress had expressly denied for the construction of a wall along the southern border. Before that declaration, most Americans were unaware that a vast set of laws gives the president greatly enhanced powers during emergencies. The Brennan Center, building on previous research, has identified 135 statutory powers that may become available to the president when he declares a national emergency, including the power President Trump invoked to help build the wall (10 U.S.C. 2808 (a)). An additional 13 statutory powers become available when a national emergency is declared by Congress.

The Brennan Center’s research is presented in the two tables below. The first lists several important laws that establish general frameworks for different kinds of emergencies (including national emergencies, major disasters, public health emergencies, etc.). The second sets forth the 148 statutory provisions available during national emergencies; it displays these powers by subject matter, specifies the conditions triggering their use, and lists the occasions on which they have been invoked. This table is sortable/searchable by level of restriction on the president’s powers, U.S. code title, and keyword. Our top-line observations from this research may be found here, while our methodology for compiling the database is available here. Separately, we have developed a running list of national emergencies declared since the National Emergencies Act went into effect. And we did a deeper dive into some of these powers in the January/February 2019 issue of The Atlantic.

Emergency Framework Statutes

U.S. Section Code

50 U.S.C. §§ 1601–1651

Subject Matter

National Emergencies Act (1976)

Language Dictating When Powers Become Available

“With respect to acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency”

Invocations and Delegations of Authority

The National Emergencies Act imposes procedural requirements on the President’s exercise of emergency powers. It has governed the declaration of multiple emergencies. For a complete list of emergencies declared under this statute, see here.

U.S. Section Code

42 U.S.C. § 247d

Subject Matter

Public Health Service Act (1944)

Language Dictating When Powers Become Available

“"If the Secretary [of Health and Human Services] determines, after consultation with such public health officials as may be necessary, that –

(1) A disease or disorder presents a public health emergency; or

(2) A public health emergency, including significant outbreaks of infectious diseases or bioterrorist attacks, otherwise exists”

Invocations and Delegations of Authority

See here for list of declarations under this statute since 2005.

Two recent invocations of this authority include:

Pres. Memo., Combatting the National Drug Demand and Opioid Crisis, 82 FR 50305, Oct. 26, 2017 (instructing the HHS Secretary to declare a Public Health Emergency to combat the opioid crisis); and

Proc. 8443, Declaration of a National Emergency With Respect to the 2009 H1N1 Influenza Pandemic, 74 FR 55439, Oct. 23, 2009.

U.S. Section Code

42 U.S.C. §§ 5121 et seq.

Subject Matter

Robert T. Stafford Disaster Relief and Emergency Assistance Act (1988; earlier iterations, known as the "Disaster Relief Act,” were issued in 1950 and 1974)

Language Dictating When Powers Become Available

A Governor can petition the President for a declaration of major disaster or emergency under this chapter when she reaches "a finding that [a] disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and affected local governments and that Federal assistance is necessary” 42 U.S.C. § 5170

42 U.S.C. § 5122 defines an emergency under this chapter as “any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.” The same section defines a major disaster under this chapter as ”any natural catastrophe (including any hurricane, tornado, storm, high water, winddriven [sic] water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this chapter to supplement the efforts and available resources of States, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby”

Invocations and Delegations of Authority

Between 1953 and 2014, averages of 35.5 major disaster declarations were issued annually by Presidents under the Stafford Act and its predecessor Disaster Relief Acts. Emergency declarations under this act have been issued on average 9 times annually between 1974 and 2014. Fire Management Assistance Grants have also been issued under this act at a rate of about 24 per year in the same period.

For more information, see Bruce R. Lindsay and Francis X. McCarthy, Stafford Act Declarations 1953–2014: Trends, Analyses, and Implications for Congress, R42702, Congressional Research Service, 2015.

*** The statute does allow for the deployment of federal troops to coordinate disaster response and provide relief efforts, but troops deployed under this statute do not have any law enforcement authority. ***

U.S. Section Code

22 U.S.C. § 2318 (a)(1)

Subject Matter

President may direct the drawdown of defense articles from Department of Defense stocks, Department of Defense services, and military education and training, of a total value not to exceed $100 million per year, for the purpose of providing military, economic, peacekeeping, antiterrorism, and/or non-proliferation assistance to foreign countries and international organizations (1961)

Language Dictating When Powers Become Available

“(1) If the President determines and reports to the Congress in accordance with section 2411 of this title that –

(A) an unforeseen emergency exists which requires immediate military assistance to a foreign country or international organization; and

(B) the emergency requirement cannot be met under the authority of the Arms Export Control Act [22 USC §§ 2751 et seq.] or any other law except this section”

Invocations and Delegations of Authority

Between 1988 and 2020, this statute was invoked 58 times. It has also been invoked more than 25 times throughout the Russia-Ukraine war:

Pres. Memorandum, Delegation of Authority Under Section 506(a)(1) of the Foreign Assistance Act of 1961, 87 FR 79787, Dec. 21, 2022.

Statutes Available Upon Declaration of a National Emergency

Click on restriction levels to show corresponding provisions. Type a search term if you’re looking for a specific code title or keyword.

All

No restrictions on president’s power to invoke during a national emergency

No meaningful restrictions on president’s power to invoke during a national emergency

Substantial restrictions on president’s power to invoke during national emergency

Requires Congressional declaration of national emergency to invoke

Public Health

U.S. Section Code

42 U.S.C. § 1320b-5

Subject Matter

Secretary of Health and Human Services may waive confidentiality, certification, sanctions, and other provisions as necessary to supply public health services (2002)

Language Dictating When Powers Become Available

“in any emergency area and during an emergency period,” defined as ”(g)(1)(A) an emergency or disaster declared by the President pursuant to the National Emergencies Act or the Robert T. Stafford Disaster Relief and Emergency Assistance Act; and (B) a public health emergency declared by the Secretary pursuant to section 247d of this title.”

Section 247d says "If the Secretary determines, after consultation with such public health officials as may be necessary, that

(1) a disease or disorder presents a public health emergency or

(2) a public health emergency, including significant outbreaks of infectious diseases or bioterrorist attacks otherwise exists, the Secretary may take such action as may be appropriate to respond"

Invocations and Delegations of Authority

More commonly referred to as Social Security Act (SSA) § 1135. See here for list of recent waivers issued under SSA § 1135.

For an example of a recent invocation of this statute, see Proc. 8443, Declaration of a National Emergency With Respect to the 2009 H1N1 Influenza Pandemic, 74 FR 55439, Oct. 23, 2009.

Certain authorities under this section have since been delegated, though the waiver authority remains with the Secretary. See Department of Health and Human Services, Centers for Medicare & Medicaid Services; Delegation of Authority, 75 FR 11185, Mar. 10, 2010 (delegating certain authorities under this section to the Administrator of the Centers for Medicare & Medicaid Services).

Proc. 9994, Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, 85 FR 15337, Mar. 13, 2020 (invoked in response to the spread of the novel coronavirus).

U.S. Section Code

21 U.S.C. § 360bbb-3

Subject Matter

Secretary of Health and Human Services may authorize the use of an unapproved drug, device, or biological product, or an unapproved use of an approved drug, device, or biological product (2004)

Language Dictating When Powers Become Available

“The Secretary may make a declaration that the circumstances exist justifying the authorization under this subsection for a product on the basis of—

(A) a determination by the Secretary of Homeland Security that there is a domestic emergency, or a significant potential for a domestic emergency, involving a heightened risk of attack with a biological, chemical, radiological, or nuclear agent or agents;

(B) a determination by the Secretary of Defense that there is a military emergency, or a significant potential for a military emergency, involving a heightened risk to United States military forces of attack with a biological, chemical, radiological, or nuclear agent or agents;

(C) a determination by the Secretary that there is a public health emergency, or a significant potential for a public health emergency, that affects, or has a significant potential to affect, national security or the health and security of United States citizens living abroad, and that involves a biological, chemical, radiological, or nuclear agent or agents, or a disease or condition that may be attributable to such agent or agents; or

(D) the identification of a material threat pursuant to section 319F–2 of the Public Health Service Act [42 U.S.C. § 247d–6b] sufficient to affect national security or the health and security of United States citizens living abroad”

Invocations and Delegations of Authority

This statute has been invoked over a dozen times since being enacted in 2004, to authorize use of unapproved products to respond to emergencies ranging from anthrax threats to Ebola. Nine Emergency Use Authorizations (EUAs) are currently in effect in the United States. See here for a list of active declarations under this statute, and here for an archived list of past declarations.

For a recent example of a declaration under this statute, see HHS Notice, Determination and Declaration Regarding Emergency Use of in Vitro Diagnostic Tests for Detection of Zika Virus and/or Diagnosis of Zika Virus Infection, 81 FR 10878, Feb. 26, 2016 (revoked June 30, 2017).

U.S. Section Code

42 U.S.C. § 7410 (f)

Subject Matter

Governor of a State may petition the President to suspend any part of Clean Air Act implementation plan or any requirement under 42 U.S.C. § 7651j (concerning excess emissions penalties or offsets) for up to 4 months (1977)

Language Dictating When Powers Become Available

“Upon application by the owner or operator of a fuel burning stationary source, and after notice and opportunity for public hearing, the Governor of the State in which such source is located may petition the President to determine that a national or regional energy emergency exists of such severity” that a temporary suspension may be necessary, and that "other means of responding to the emergency may be inadequate”

Invocations and Delegations of Authority

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

E.O. 11912, Delegation of Authorities Relating to Energy Policy and Conservation, 41 FR 15825, Apr. 13, 1976 (delegating Presidential authorities under this section to the Administrator of the Federal Energy Administration).

U.S. Section Code

42 U.S.C. § 300ff-83

Subject Matter

Secretary of Health and Human Services may waive provisions of HIV Health Care Services Program to improve the health and safety of those receiving care under the Program and the general public, but may not expend more than 5% of the funds allocated under the Program for supplemental grants (2006)

Language Dictating When Powers Become Available

“in an emergency area and during an emergency period,” defined as:

“a geographic area in which there exists

(A) an emergency or disaster declared by the President pursuant to the National Emergencies Act or the Robert T. Stafford Disaster Relief and Emergency Assistance Act; or

(B) a public health emergency declared by the Secretary pursuant to section 247d of this title”; and

“the period in which there exists -—

(A) an emergency or disaster declared by the President pursuant to the National Emergencies Act or the Robert T. Stafford Disaster Relief and Emergency Assistance Act; or

(B) a public health emergency declared by the Secretary pursuant to section 247d of this title”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

Land Management

U.S. Section Code

20 U.S.C. § 79

Subject Matter

Barro Colorado island in the Panama Canal Zone, which is otherwise to be left in its "natural state for scientific observation,” may be used for other purposes (1940)

Language Dictating When Powers Become Available

“in event of declared national emergency”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

U.S. Section Code

16 U.S.C. § 831s

Subject Matter

Government may take possession of land specified in Tennessee Valley Authority Act for the purpose of manufacturing explosives or for other war purposes (1933)

Language Dictating When Powers Become Available

“in case of war or national emergency declared by Congress”

Invocations and Delegations of Authority

Invocations and Delegations of Authority

Invocations and Delegations of Authority

After World War II, as part of a surplus property conveyance program, the federal government conveyed without monetary consideration some military air bases to state and local governments for use as airports. This provision was invoked to reclaim at least one of these air bases during the Korean War national emergency. See generally "Gabreski Airport History,” Suffolk County Government, accessed Oct. 19, 2018.

U.S. Section Code

23 U.S.C. §§ 127 (h), (i)

Subject Matter

(h) Secretary of Transportation may waive vehicle weight limits on Interstate 95 between Augusta, ME and Bangor, ME for bulk shipments of jet fuel to the Air National Guard Base at Bangor International Airport (2001);

(i) A State may issue special 120-day permits during an emergency to overweight vehicles and loads that can easily be dismantled or divided (2012)

Language Dictating When Powers Become Available

(h) "…during a period of national emergency in order to respond to the effects of the national emergency.”

(i) if "the President has declared the emergency to be a major disaster under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. § 5121 et seq.); the permits are issued in accordance with State law; and the permits are issued exclusively to vehicles and loads that are delivering relief supplies”

Invocations and Delegations of Authority

**Zero citing references on Westlaw**

U.S. Section Code

40 U.S.C. § 545 (b)(1)(A)

Subject Matter

Administrator of General Services may, if necessary in the public interest, negotiate disposal of a particular lot of surplus personal property without first publicly advertising for bids, but subject to obtaining competition that is feasible under the circumstances (2002)

Language Dictating When Powers Become Available

“during the period of a national emergency declared by the President or Congress”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

U.S. Section Code

42 U.S.C. § 4625 (c)(3)(B)

Subject Matter

Provision that persons displaced by a federal project may not be required to leave their dwelling unless they have had a reasonable opportunity to relocate to a comparable replacement dwelling does not apply (1971)

Language Dictating When Powers Become Available

“in the case of–

(A) a major disaster as defined in section 5122(2) of this title;

(B) a national emergency declared by the President; or

(C) any other emergency which requires the person to move immediately from the dwelling because the continued occupancy of such dwelling by such person constitutes a substantial danger to the health or safety of such person”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

Military and National Defense

U.S. Section Code

50 U.S.C. §§ 1431–1435

Subject Matter

President may authorize any agency that exercises functions in connection with the national defense to enter into, amend, or make advance payments on contracts up to certain specified amounts and subject to certain restrictions, without regard to other provisions of law relating to contract formation, amendment, or performance, if the President deems it to be in the interest of national defense (1958)

Language Dictating When Powers Become Available

This authority is "effective only during a national emergency declared by Congress or the President and for six months after the termination thereof or until such earlier time as Congress, by concurrent resolution, may designate” (50 U.S.C. § 1435)

Invocations and Delegations of Authority

Language Dictating When Powers Become Available

“In time of war, or of national emergency declared by Congress or the President”

Invocations and Delegations of Authority

E.O. 12743, Ordering the Ready Reserve of the Armed Forces to Active Duty, 56 FR 2661, Jan. 18, 1991 (invoked in response to “the continuing threat posed by Iraq’s invasion of Kuwait,” ”in furtherance of [E.O.] 12722, dated August 2, 1990,” and delegated to Secretary of Defense);

Proc. 7463, Declaration of National Emergency By Reason of Certain Terrorist Attacks, 66 FR 48199, Sept. 14, 2001 (invoked in response to events of 9/11/2001);

U.S. Section Code

10 U.S.C. § 603

Subject Matter

President may temporarily appoint any qualified person to any officer grade in the Army, Navy, Air Force, or Marine Corps, but not to grades above major general or rear admiral (1980)

Language Dictating When Powers Become Available

“In time of war, or of national emergency declared by the Congress or the President”

Invocations and Delegations of Authority

(B) upon a determination by the President, on a nondelegable basis, that action is necessary to avert an industrial resource or critical technology item shortfall that would severely impair national defense capability”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

U.S. Section Code

10 U.S.C. § 8103 (formerly 10 U.S.C. § 5451)

Subject Matter

President may suspend the operation of statutes imposing distribution in grade requirements on the Navy (1956; powers amended and expanded to allow suspension of further statutes in 1991)

Language Dictating When Powers Become Available

“during a war or national emergency… [not to] continue beyond September 30 of the fiscal year following that in which the war or national emergency ends”

Invocations and Delegations of Authority

Language Dictating When Powers Become Available

“If at the end of any fiscal year there is in effect a declaration of war or national emergency”

*No relevant citing references on Westlaw*

U.S. Section Code

10 U.S.C. § 123a (a)

Subject Matter

(1) President may waive any statutory "end strength” (the number of active duty military and civilian personnel in a military or civilian component of the armed forces or of the Department of Defense on the last day of a particular accounting period) for that fiscal year

(2) President may waive any statutory limit that would otherwise apply during the period on the number of members of a reserve component who are authorized to be on active duty, if the President determines the waiver is necessary to provide assistance in responding to the major disaster or emergency (1990)

Language Dictating When Powers Become Available

(1) "If at the end of any fiscal year there is in effect a war or national emergency”

“If, because of national emergency or serious economic conditions affecting the general welfare, the President should consider the level of comparability payments…in any year to be inappropriate”

Invocations and Delegations of Authority

This provision has been routinely invoked by Presidents seeking to adjust federal pay schedules since the mid-1990s. See here for more information.

President Trump recently announced his intention to implement alternate plans for pay adjustments under the authority of this statute in January 2019. See Text of a Letter from the President to the Speaker of the House of Representatives and the President of the Senate, White House, Aug. 30, 2018.

U.S. Section Code

40 U.S.C. § 3147

Subject Matter

President may suspend statutory wage-rate requirements for public contracts (1931)

Language Dictating When Powers Become Available

“during a national emergency”

Invocations and Delegations of Authority

President Franklin Roosevelt invoked this provision to suspend the Davis-Bacon Act nationwide in 1934 but ended the suspension within a month. This provision may also have been used to suspend Davis-Bacon under the generalized state of emergency proclaimed during World War II. For more information, see William G. Whittaker, The Davis-Bacon Act: Suspension, RL 33100, Congressional Research Service, September 26, 2005, 4.

Recent invocations of this statute have been consistently controversial. The longest invocation of this statute since World War II only lasted for four months. See, e.g.:

President may suspend any provision of law related to the promotion, retirement, or separation of permanent reserve warrant officers of any armed force (1956)

Language Dictating When Powers Become Available

“In time of war, or of emergency declared after May 29, 1954, by Congress or the President”

Invocations and Delegations of Authority

**Zero citing references on Westlaw**

E.O. 11390, Delegation of Certain Functions of the President to the Secretary of Defense, 33 FR 841, Jan. 22, 1968 (Section 1(4) of this order delegated powers under this statute to the Secretary of Defense)

U.S. Section Code

10 U.S.C. § 857 Art. 57 (a)(4) (formerly cited as 10 U.S.C. § 871 Art. 71 (b))

Subject Matter

In the case of a commissioned officer, cadet, or midshipman, the Secretary, Under Secretary, or Assistant Secretary of the military department concerned may commute a court martial sentence of dismissal to reduction to any enlisted grade. A person so reduced may be required to serve for the duration of the war or emergency and for six months thereafter (1956)

Language Dictating When Powers Become Available

“in time of war or national emergency”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

E.O. 10498, Delegating to the Secretaries of the Military Departments and the Secretary of the Treasury Certain Authority Vested in the President by the Uniform Code of Military Justice, 18 FR 7003, Nov. 6, 1953 (delegating the authority conferred by this statute to secretaries of military departments concerned as to persons convicted by military tribunals under their jurisdiction)

U.S. Section Code

42 U.S.C. § 211 (k)

Subject Matter

Certain restrictions on promotion of commissioned officers of the Regular Corps of the Public Health Service do not apply (1944)

Language Dictating When Powers Become Available

In "time of war, or of national emergency proclaimed by the President”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

E.O. 10506, Delegating Certain Functions of the President Under the Public Health Service Act, 18 FR 8219, Dec. 10, 1953 (delegating the authority given by this statute to waive restrictions on promotion in the Public Health Service Corps in times of national emergency generally to the Secretary of Health, Education, and Welfare);

E.O. 11140, Delegating Certain Functions of the President Relating to the Public Health Service, 29 FR 1637, Jan. 30, 1964 (delegating the authority given by this statute to waive restrictions on promotion in the Public Health Service Corps in times of national emergency generally to the Secretary of Health and Human Services).

U.S. Section Code

10 U.S.C. § 123

Subject Matter

President may suspend any provision of law related to the promotion, involuntary retirement, or separation of commissioned officers of the Army, Navy, Air Force, Marine Corps, or Coast Guard Reserve (1958)

Language Dictating When Powers Become Available

“In time of war, or of national emergency declared by Congress or the President” and "so long as such war or national emergency continues”

Invocations and Delegations of Authority

Invocations and Delegations of Authority

Proc. 7463, Declaration of National Emergency By Reason of Certain Terrorist Attacks, 66 FR 48199, Sept. 14, 2001 (invoked in response to the events of 9/11/2001);

E.O. 13223, Ordering the Ready Reserve of the Armed Forces to Active Duty and Delegating Certain Authorities to the Secretary of Defense and the Secretary of Transportation, 66 FR 48201, Sept. 14, 2001 (invoked in response to the events of 9/11/2001 and delegated to the Secretary of Transportation when the Coast Guard is not serving as part of the Navy) (later amended to delegate such authority to Secretary of Homeland Security instead of Secretary of Transportation).

U.S. Section Code

14 U.S.C. § 2308 (formerly 14 U.S.C. § 359)

Subject Matter

Commandant of the Coast Guard may order any enlisted member on the retired list to active duty (1949)

Language Dictating When Powers Become Available

“In times of war or national emergency”

Invocations and Delegations of Authority

Proc. 7463, Declaration of National Emergency By Reason of Certain Terrorist Attacks, 66 FR 48199, Sept. 14, 2001 (invoked in response to the events of 9/11/2001);

U.S. Section Code

33 U.S.C. § 3030

Subject Matter

Subject to certain limitations, all laws authorizing temporary appointment or advancement of commissioned officers in the Navy also apply to officers of the National Oceanic and Atmospheric Administration (2002)

Language Dictating When Powers Become Available

“in time of war or national emergency”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

E.O. 13341, Further Amendment to Executive Order 11023, Providing for the Performance by the Secretary of Commerce of Certain Functions Relating to the National Oceanic and Atmospheric Administration, 69 FR 29843, May 20, 2004 (amending E.O. 11023, 27 FR 5131, May 28, 1962, and delegating authority to make appointments and promotions under this section to the Secretary of Commerce).

U.S. Section Code

10 U.S.C. § 8102 (formerly cited as 10 U.S.C. § 5450)

Subject Matter

More than ten retired flag officers may be on active duty in the Navy (1956)

Language Dictating When Powers Become Available

“in time of war or national emergency”

Invocations and Delegations of Authority

**Zero citing references on Westlaw**

U.S. Section Code

10 U.S.C. § 155 (f)(4)

Subject Matter

Restrictions on Joint Staff officer tours of duty do not apply (1986)

Language Dictating When Powers Become Available

In "time of war; or

(B) during a national emergency declared by the President or Congress”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

U.S. Section Code

10 U.S.C. § 194 (e)

Subject Matter

Certain caps on defense agency personnel do not apply (1986)

Language Dictating When Powers Become Available

10 U.S.C. § 12301 (a)

Subject Matter

An authority designated by the Secretary concerned may, without the consent of the persons affected, order any unit and any member of a reserve component under the jurisdiction of that Secretary to active duty for the duration of the war or emergency and for six months thereafter (1956)

Language Dictating When Powers Become Available

“In time of war or of national emergency declared by Congress, or when otherwise authorized by law”

Invocations and Delegations of Authority

This provision has not been invoked since WWII.

See Colonel Kevin Cieply, "Charting a New Role for Title 10 Reserve Forces: A Total Force Response to Natural Disasters,” Dept. of Army Pamphlet 27–100–196, Military Law Review, Summer 2008.

U.S. Section Code

50 U.S.C. §§ 3806 (b), (c)

Subject Matter

(b) Certain World War II veterans, who would ordinarily be exempt from Selective Service, may be drafted; and

(c) Certain persons, who would ordinarily be exempt from Selective Service because of prior service in the Reserves, may be drafted (1948)

Language Dictating When Powers Become Available

(b) "after a declaration of war or national emergency made by the Congress subsequent to June 24, 1948”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

U.S. Section Code

50 U.S.C. § 4560 (e)

Subject Matter

President may provide for the establishment and training of a "nucleus executive reserve” for employment in executive positions in government (1955)

Language Dictating When Powers Become Available

“during periods of national defense emergency, as determined by the President”

Invocations and Delegations of Authority

Language Dictating When Powers Become Available

“during any period members of a reserve component are serving on active duty pursuant to an order to active duty under authority of” 10 U.S.C. §§ 12301, 12302, or 12304

Invocations and Delegations of Authority

Proc. 7463, Declaration of National Emergency By Reason of Certain Terrorist Attacks, 66 FR 48199, Sept. 14, 2001 (invoked in response to the events of 9/11/2001);

E.O. 12728, Delegating President’s Authority to Suspend Any Provision of Law Relating to Promotion, Retirement, or Separation of Members of Armed Forces, 55 FR 35029, Aug. 22, 1990 (delegating authority under this section to the Secretary of Defense and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Department of the Navy).

U.S. Section Code

10 U.S.C. § 1491 (e)

Subject Matter

Secretary of Defense may waive any requirements with respect to funeral honors for veterans (1999)

Language Dictating When Powers Become Available

“when the Secretary considers it necessary to do so to meet the requirements of war, national emergency, or a contingency operation or other military requirements.” This authority may not be delegated.

Invocations and Delegations of Authority

**Zero citing references on Westlaw**

U.S. Section Code

38 U.S.C. § 1721

Subject Matter

Secretary of Veterans Affairs may prescribe limitations on the provision of hospital, nursing home, and domiciliary care and medical services in VA facilities (1988)

Language Dictating When Powers Become Available

“during a period of national emergency (other than a period of war or an emergency described in section 8111A of this title)”

Secretary of Education may waive provisions of Higher Education Relief Opportunities for Students Act of 2003 (2003)

Language Dictating When Powers Become Available

“as the Secretary deems necessary in connection with a war or other military operation or national emergency”

Invocations and Delegations of Authority

(1) a use or threatened use of a weapon of mass destruction; or

(2) a terrorist attack or threatened terrorist attack in the United States that results, or could result, in significant loss of life or property”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

This statute has never been invoked for the purposes of responding to a domestic emergency as outlined in § 12304 (b), but the general authority of the President to augment the forces as necessary for operational missions has been invoked in executive orders seven times since 1990, for the purposes of augmenting forces in missions on the Arabian Peninsula; responding to disasters in Haiti; conducting operations in and around the former Yugoslavia; assisting operations in Southwest Asia; and responding to the Ebola outbreak in West Africa.

U.S. Section Code

38 U.S.C. § 8111A

Subject Matter

Secretary of Veteran’s Affairs may provide hospital care, nursing home care, and medical services to members of the armed forces on active duty (1982)

Language Dictating When Powers Become Available

“During and immediately following a period of war, or a period of national emergency declared by the President or the Congress that involves the use of the armed forces in armed conflict” and "during and immediately following a disaster or emergency [declared by the President under the Stafford Act, 42 U.S.C. §§ 5121 et seq. or activated by the Secretary of Health and Human Services under the Public Health Service Act, 42 U.S.C. § 300hh]”

Invocations and Delegations of Authority

E.O. 12751, Health Care Services for Operation Desert Storm, 56 F.R. 6787, Feb. 14, 1991 (providing medical services to members of the Armed Forces on active duty in Operation Desert Storm);

The Veterans Health Administration has been providing healthcare to active duty service members pursuant to this statute consistently since at least 2005: see, e.g. VHA Directive 2005–045, Treatment of Active Duty Service Members in VA Health Care Facilities, 2005 WL 6240720, Oct. 4, 2005;

VHA Directive 2010–051, Treatment of Active Duty and Reserve Component Servicemembers in VA Health Care Facilities, 2010 WL 5676520, Nov. 28, 2010;

VHA Directive 1305, Treatment of Active Duty and Reserve Component Servicemembers in VA Health Care Facilities, 2017 WL 1058015, Mar. 10, 2017.

U.S. Section Code

Sec. 702 of NDAA for FY 2023 (to be codified at 10 U.S.C. § 1145(a)(2)(G))

Subject Matter

A member of the National Guard called to active service to respond to a national emergency is entitled to health benefits following separation from active duty (2022)

Language Dictating When Powers Become Available

If the member was “called or ordered under section 502(f) of title 32 for a period of active service of more than 30 days to perform duties that are authorized by the President or the Secretary of Defense for the purpose of responding to a national emergency declared by Congress or the President and supported by Federal funds.” The relevant section of 32 U.S.C. § 502(f) describes the circumstances in which the National Guard may be ordered to active duty, including generally in “support of operations undertaken by the member’s unit at the request of the President or Secretary of Defense.”

Invocations and Delegations of Authority

**Zero citing references on Westlaw**

Asset Seizure, Control, and Transfer

U.S. Section Code

46 U.S.C. § 70051 (formerly 50 U.S.C. § 191)

Subject Matter

Secretary of Transportation may

(1) make, subject to approval of the President, rules and regulations governing the anchorage and movement of any vessel, foreign or domestic, in U.S. territorial waters;

(2) inspect such vessel at any time;

(3) place guards thereon; and

(4) if necessary to secure such vessels from damage or injury, or to prevent damage or injury to any U.S. harbor or waters, or to secure the observance of U.S. rights and obligations, take, by and with the consent of the President, full possession and control of such vessel and remove the officers and crew and all other persons not specially authorized by the Secretary to go or remain on board (1917)

Language Dictating When Powers Become Available

“Whenever the President by proclamation or Executive order declares a national emergency to exist by reason of actual or threatened war, insurrection, or invasion, or disturbance or threatened disturbance of the international relations of the United States, or whenever the Attorney General determines that an actual or anticipated mass migration of aliens en route to, or arriving off the coast of, the United States presents urgent circumstances requiring an immediate Federal response”

Invocations and Delegations of Authority

E.O 12513, Prohibiting Trade and Certain Other Transactions Involving Nicaragua, 50 FR 18629, May 1, 1985 (invoked in response to the "policies and actions of the Government of Nicaragua”);

E.O. 13810, Imposing Additional Sanctions With Respect to North Korea, 82 FR 44705, Sept. 20, 2017 (prohibiting ships that call at a port in North Korea, or engage in a “ship-to-ship transfer” with ”such a vessel” from calling at a port in the U.S. within 180 days);

This statute has also routinely been invoked with respect to regulating anchorage and movement of vessels around Cuba since 1996, when Cuban military aircraft destroyed U.S. civilian aircraft in international airspace. The initial emergency declaration was Proc. No. 6867, Declaration of a National Emergency and Invocation of Emergency Authority Relating to the Regulation of the Anchorage and Movement of Vessels, 61 F.R. 8843, Mar. 1, 1996. The most recent continuation of this emergency was Proc. No. 9699, Modifying and Continuing the National Emergency With Respect to Cuba and Continuing to Authorize the Regulation of the Anchorage and Movement of Vessels, 83 FR 8161, Feb. 22, 2018.

U.S. Section Code

50 U.S.C. § 98f (a)(2)

Subject Matter

Any officer or employee of the United States designated by the President may order the release of materials in the strategic raw materials stockpile for use, sale, or other disposition, if she determines that the release is required for purposes of the national defense (1939)

Language Dictating When Powers Become Available

“in time of war declared by the Congress or during a national emergency”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

U.S. Section Code

50 U.S.C. § 4309

Subject Matter

Alien Property Custodian, or any successor officer, may, upon determination by the President that the interest and welfare of the United States require the sale, sell any alien property or interest in their custody prior to entry of judgment in suit concerning said property or interest (1917)

Language Dictating When Powers Become Available

“in time of war or during any national emergency declared by the President”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

Functions of Alien Property Custodian under this act were transferred to Attorney General by Reorg. Plan No. 1 of 1947, Sec. 101, 12 F.R. 4534, July 1, 1947.

U.S. Section Code

7 U.S.C. § 5712 (c)

Subject Matter

President can prohibit or limit the export of any agricultural commodity (1990)

Language Dictating When Powers Become Available

“during a period for which the President has declared a national emergency or for which the Congress has declared war”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

U.S. Section Code

35 U.S.C. § 181

Subject Matter

Whenever the publication or disclosure of an invention might be detrimental to national security, the Commissioner of Patents may order the invention kept secret and the publication of the application or the grant of a patent withheld for the duration of a national emergency plus six-months. Outside of an emergency, such orders may only last one year absent an affirmative determination that the national interest requires renewal of the order. (1952)

Language Dictating When Powers Become Available

“during a national emergency declared by the President”

Invocations and Delegations of Authority

The database of orders issued under this statute does not appear to be available on Westlaw. As of the end of FY 2018, 5,792 secrecy orders were in effect per information released by the Patent and Trademark Office. Only 85 of those orders were newly declared in 2018. It is unclear from the available information how many of the other 5,707 secrecy orders remained in place due to national emergencies, versus being renewed annually as a result of the affirmative declaration process.

U.S. Section Code

50 U.S.C. §§ 4531 (a)(2), (d)(1)

Subject Matter

(a)(2) President may authorize an agency to guarantee loans by private institutions in order to finance products and services essential to the national defense without regard to normal procedural and substantive requirements for such loan guarantees;

(d)(1) Federal government may make a guarantee or obligation relating to a domestic industrial base shortfall that causes the aggregate outstanding amount of all guarantees for that shortfall to exceed $50,000,000 without first notifying Congress (1950)

Language Dictating When Powers Become Available

(a)(2) "during a period of national emergency declared by Congress or the President”;

(d)(1)(i) "during a period of national emergency declared by Congress or the President; or

(ii) upon a determination by the President, on a nondelegable basis, that a specific guarantee is necessary to avert an industrial resource or critical technology item shortfall that would severely impair national defense capability”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

“In any case where the Secretary of Agriculture determines and reports to the President with regard to any article or articles that a condition exists requiring emergency treatment”

Invocations and Delegations of Authority

Proc. 4423, Import Limitation on Dry Milk Mixtures, 41 FR 12875, Mar. 26, 1976 (issued after "The Secretary of Agriculture […] determined and reported […] with regard to such dry milk mixtures that a condition exists which requires emergency treatment and that the import restrictions hereinafter proclaimed should be imposed immediately without awaiting the recommendations of the United States International Trade Commission.”);

Proc. 4538, Import Fees on Sugar, Sirups, and Molasses, Nov. 11, 1977 (issued after "The Secretary of Agriculture … determined … that a condition exists which requires emergency treatment” with regard to the importation of sugars, syrups, and molasses);

Proc. 4547, Import Fees on Sugar, Sirups, and Molasses, 91 Stat. 1775, Jan. 20, 1978 (issued after "The Secretary of Agriculture has […] informed me that the fees established by [Proc. No. 4538] are insufficient [….] and has reaffirmed his determination that the condition requires emergency treatment.”);

Proc. 4807, Modification of Import Controls on Peanuts, Dec. 4, 1980 (issued by Reuben Askew, U.S. Trade Representative, on behalf of President Carter – who delegated this authority with respect to peanuts – after "The Secretary of Agriculture has … determined and reported to me that a condition exists with respect to peanuts which requires emergency treatment…”)

U.S. Section Code

46 U.S.C. § 56301

Subject Matter

Secretary of Transportation may requisition, purchase, or charter the use of a vessel owned by U.S. citizens, documented under U.S. law, or under construction in the U.S. (1936)

Language Dictating When Powers Become Available

“During a national emergency declared by Presidential proclamation, or a period for which the President has proclaimed that the security of the national defense makes it advisable”

Invocations and Delegations of Authority

E.O. 9054, Establishing a War Shipping Administration In The Executive Office of the President and Defining its Functions and Duties, 7 FR 837, Feb. 7, 1942 (invoked as § 902 of the Merchant Marine Act of 1936, now codified at 46 U.S.C. § 56301, and delegated to and exercised extensively by the War Shipping Administration during World War II).

U.S. Section Code

46 U.S.C. § 56309

Subject Matter

Secretary of Transportation may purchase, requisition, charter, take over the title of, or take over possession of any merchant vessel not owned by U.S. citizens but lying idle in U.S. waters. The government shall pay just compensation to the owners. (1941)

Language Dictating When Powers Become Available

“During any period in which vessels may be requisitioned under this chapter

46 U.S.C. § 56301 defines this period as: "a national emergency declared by Presidential proclamation, or a period for which the President has proclaimed that the security of the national defense makes it advisable”

Invocations and Delegations of Authority

Language Dictating When Powers Become Available

“if the Secretary concerned determines that the transaction is made as a result of any of the following:

(A) A declaration of war

(B) A declaration of a national emergency by the President pursuant to the National Emergencies Act (50 U.S.C. §§ 1601 et seq.)

(C) A declaration of an emergency or major disaster pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. §§ 5121 et seq.)

(D) The use of the militia or the armed forces after a proclamation to disperse under section 334 of this title.

(E) A contingency operation OR "if the Secretary determines that an event [as described above] is imminent; and the transaction is necessary for purposes of preparation for such event”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

U.S. Section Code

33 U.S.C. § 2293

Subject Matter

Secretary of the Army may terminate or defer any Army civil works project and apply the resources, including funds, personnel, and equipment, of the Army’s civil works program to authorized civil works, military construction, and civil defense projects that are essential to the national defense, without regard to any other provision of law (1986)

Language Dictating When Powers Become Available

“In the event of a declaration of war or a declaration by the President of a national emergency in accordance with the National Emergencies Act [50 U.S.C. §§ 1601 et seq.] that requires or may require use of the Armed Forces”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

U.S. Section Code

42 U.S.C. § 2138

Subject Matter

Atomic Energy Commission may suspend atomic energy licenses if necessary to the common defense and security (1946)

Language Dictating When Powers Become Available

“Whenever the Congress declares that a state of war or national emergency exists”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

Note: The Atomic Energy Commission was abolished in 1974. Authority under 42 U.S.C. § 2138 was transferred to the Nuclear Regulatory Commission. Pub. L. 93–438, Title II, 88 Stat. 1244, Oct. 11, 1974, § 202.

U.S. Section Code

46 U.S.C. § 7507

Subject Matter

(a) Secretary of the department in which the Coast Guard is operating may extend an expiring license or certificate of registry for one year;

(b) Secretary of the department in which the Coast Guard is operating may extend an expiring merchant mariner’s document for one year (2010)

Language Dictating When Powers Become Available

(a) "if the Secretary determines that the extension is required to enable the Coast Guard to eliminate a backlog in processing applications for those licenses or certificates of registry or in response to a national emergency or natural disaster”;

(b) "if the Secretary determines that the extension is required to enable the Coast Guard to eliminate a backlog in processing applications for those licenses or certificates of registry or in response to a national emergency or natural disaster”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

U.S. Section Code

46 U.S.C. § 53107

Subject Matter

Owners or operators of vessels in the Maritime Security Fleet must enter into Emergency Preparedness Agreements with the Secretary of Transportation, in which they agree to make commercial transportation resources (including services) available (2003)

Language Dictating When Powers Become Available

“upon request by the Secretary of Defense during a time of war or national emergency, or whenever the Secretary of Defense determines that it is necessary for national security or contingency operation (as that term is defined in section 101 of title 10, United States Code)”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

Due to the nature of this statute (a contract provision), Westlaw would likely only contain citations to legal challenges to the statute, not to every instance in which it has been invoked.

U.S. Section Code

47 U.S.C. § 308

Subject Matter

Federal Communications Commission (FCC) may grant temporary broadcast station licenses and construction permits, or temporary modifications and renewals thereof, without the filing of a formal application (1952)

Language Dictating When Powers Become Available

“(1) in cases of emergency found by the Commission involving danger to life or property or due to damage to equipment, or

(2) during a national emergency proclaimed by the President or declared by the Congress and during the continuance of any war in which the United States is engaged and when such action is necessary for the national defense or security or otherwise in furtherance of the war effort, or

(3) in cases of emergency where the Commission finds, in the non-broadcast services, that it would not be feasible to secure renewal applications from existing licensees or otherwise follow normal licensing procedure”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

U.S. Section Code

42 U.S.C. § 8374

Subject Matter

President may allocate coal and require the transportation thereof for the use of any electric power plant or major fuel-burning installation; and may stay the application of any provision or rule pertaining to electric power plants for up to 90 days or for the duration of the emergency, whichever is shorter (1978)

Language Dictating When Powers Become Available

“(1) If the President—

(A) declares a severe energy supply interruption, as defined in section 6202(8) of this title, or

(B) finds, and publishes such finding, that a national or regional fuel supply shortage exists or may exist which the President determines—

(i) is, or is likely to be, of significant scope and duration, and of an emergency nature;

(ii) causes, or may cause, major adverse impact on public health, safety, or welfare or on the economy; and

(iii) results, or is likely to result, from an interruption in the supply of coal or from sabotage, or an act of God”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

U.S. Section Code

31 U.S.C. § 3727 (d)

Subject Matter

Department of Defense, General Services Administration, Department of Energy (when carrying out duties and powers formerly carried out by the Atomic Energy Commission), or other agency the President designates may make contracts that provide, or modify contracts to provide, that a future payment under the contract to an assignee is not subject to reduction or setoff (1982)

Language Dictating When Powers Become Available

“During a war or national emergency proclaimed by the President or declared by law and ended by proclamation or law”

Invocations and Delegations of Authority

A review of citing references on Westlaw suggests that the substance of this statute may be regularly incorporated into standard government contracts, but records regarding when it’s been used effectively to modify terms of those contracts are unclear. See, e.g., Reliance Ins. Co. v. United States, 15 Cl. Ct. 62 (June 2, 1988) (No. 379–86C).

U.S. Section Code

7 U.S.C. §§ 1427a (c), (d)

Subject Matter

(d) Secretary of Agriculture may dispose of agricultural reserve (1973)

Language Dictating When Powers Become Available

(c) “when a state of emergency has been proclaimed by the President or by concurrent resolution of Congress declaring that such reserves should be disposed of,”;

(d)

“(1) for use in relieving distress

(A) in any State, the District of Columbia, Puerto Rico, Guam, or the Virgin Islands of the United States;

(B) in connection with any major disaster or emergency determined by the President to warrant assistance by the Federal Government under the Disaster Relief and Emergency Assistance Act (88 Stat. 143, as amended; 42 U.S.C. 5121); and

(C) in connection with any emergency determined by the Secretary to warrant assistance under section 1427 of this title, the Act of September 21, 1959 (73 Stat. 574, as amended; 7 U.S.C. 1427 noted), or section 2267 of this title; or

(2) use in connection with a state of civil defense emergency as proclaimed by the President or by the concurrent resolution of the Congress in accordance with title VI of The Robert T. Stafford Disaster Relief and Emergency Assistance Act [42 U.S.C. 5195 et seq.]”

Invocations and Delegations of Authority

Proc. 6907, Declaration of a State of Emergency and Release of Feed Grain From the Disaster Reserve, 61 FR 35083, July 1, 1996 (invoked in response to a long drought in the Southwest).

U.S. Section Code

42 U.S.C. § 5177a

Subject Matter

Secretary of Agriculture may make grants to public agencies or private organizations with 501(c)(3) status that have experience in providing emergency services to low-income migrant and seasonal farmworkers (1990)

Language Dictating When Powers Become Available

“where the Secretary [of Agriculture] determines that a local, State, or national emergency or disaster has caused low-income migrant or seasonal farmworkers to lose income, to be unable to work, or to stay home or return home in anticipation of work shortages”

Invocations and Delegations of Authority

A review of citing references on Westlaw suggests that this provision has been used to issue grants at least as recently as 2008, when the Department of Agriculture issued a Request for Proposals: The National Emergency or Disaster Grants to Assist Low-Income Migrant and Seasonal Farmworkers, 73 FR 6467–01, Feb. 4, 2008. The language of the Request msodoes not indicate where a complete accounting of grants issued under this statute would be published, however.

U.S. Section Code

46 U.S.C. § 56102

Subject Matter

A person may not, without the permission of the Secretary of Transportation, place a vessel owned in whole or in part by a U.S. citizen or corporation under foreign registry; sell or otherwise transfer to a non-citizen a vessel owned in whole or in part by a U.S. citizen, a vessel documented under the laws of the U.S., or a facility for building or repairing vessels; issue, assign, or transfer to a non-citizen an instrument of indebtedness secured by a mortgage of a vessel to a trustee; construct or agree to construct a vessel in the U.S. for a non-citizen; allow a non-citizen to obtain a controlling interest in a U.S. corporation that owns a vessel or a facility for building or repairing vessels; or cause a vessel built in the U.S. to leave before it is documented under the laws of the U.S. (2006)

Language Dictating When Powers Become Available

“During war, or a national emergency declared by Presidential proclamation”

Invocations and Delegations of Authority

A prior, similar, version of this statute, originally enacted Sept. 7, 1916, ch. 451, § 37, formed the statutory basis for Proc. 1354, Emergency in Water Transportation of the United States, Feb. 5, 1917 (declaring a national emergency due to the “insufficiency of maritime tonnage to carry the products of the farms, forests, mines and manufacturing industries of the United States, to their consumers abroad and within the United States,” and prohibiting the sale or transfer of ships registered and licensed in the U.S. to ”any person not a citizen” or to any "foreign registry or flag.”).

A previous codification at 46 USCA § 835 was also cited in multiple cases voiding transfers/sales in 1965. See, e.g. Chemical Bank New York Trust Co. v. S.S. Westhampton, C.A.4 (Md.), 358 F.2d 574 (1965), cert. denied, 87 S. Ct. 228;

Chemical Bank New York Trust Co. v. S.S. Westhampton, D.C. Md. 268 F. Supp. 169 (1967); United States v. Vessel FL 4127 SE, S.D. Fla. 1970, 311 F. Supp. 1353 (1970).

Criminal Prosecution and Detainment Powers

U.S. Section Code

18 U.S.C. § 793

Subject Matter

Criminal provision of the Espionage Act extends to prohibited places designated by the President where anything for the use of the Army, Navy, or Air Force is being prepared or constructed or stored (1917)

Language Dictating When Powers Become Available

“in time of war or in case of national emergency”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

Although there have been multiple prosecutions under this statute, we were not able to identify any instances in which prosecution was due specifically to the designation of additional prohibited places under the emergency provisions of the statute.

U.S. Section Code

18 U.S.C. § 2153

Subject Matter

Injuring, interfering with, or obstructing the preparation for, or carrying out of, war or defense activities of the United States or associated countries, with the intent to do so or reason to believe the actions will do so, punishable with fine or imprisonment up to 30 years (1948)

Language Dictating When Powers Become Available

“when the United States is at war, or in times of national emergency as declared by the President or by the Congress”

Invocations and Delegations of Authority

Used to prosecute several Vietnam War protestors and anti-nuclear-weapons protestors in the 1960s.

U.S. Section Code

18 U.S.C. § 2154

Subject Matter

Willful manufacture of defective war material with intent to, or reason to believe it will, injure, interfere with, or obstruct the United States or associated countries’ preparation or carrying out of war or defense activities, punishable with fine or imprisonment up to 30 years (1954)

Language Dictating When Powers Become Available

“when the United States is at war, or in times of national emergency as declared by the President or by the Congress”

Invocations and Delegations of Authority

Used to prosecute some manufacturers of war materials during and after World War II.

International Relations

U.S. Section Code

19 U.S.C. § 1318

Subject Matter

(a) President may authorize the Secretary of the Treasury to permit duty-free importation of supplies needed for use in emergency relief work;

(b) Secretary of the Treasury may eliminate, consolidate, or relocate any office or port of entry of the Customs Service; modify hours of service, alter services rendered at any location, or reduce the number of employees at any location; or take any other action that may be necessary to respond directly to the national emergency or specific threat (1930)

Language Dictating When Powers Become Available

(a) “Whenever the President shall by proclamation declare an emergency to exist by reason of a state of war, or otherwise”;”

(b) “When necessary to respond to a national emergency declared under the National Emergencies Act or to a specific threat to human life or national interests”

Invocations and Delegations of Authority

Proc. No. 2545, Free Importation of Jerked Beef, 56 Stat. 1945, Apr. 1, 1942 (invoked to allow the duty-free importation of jerked beef to Puerto Rico, as a substitute for a basic staple food [codfish] that was in short supply due to the war);

Proc. No. 2948, Merchandise in General-Order and Bonded Warehouses, 16 FR 10589, Oct. 12, 1951 (invoked in response to national emergency declared Dec. 16, 1950, in wake of Chinese intervention in Korean War);

Proc. No. 4074, Imposition of Supplemental Duty for Balance of Payments Purposes, 85 Stat. 926, Aug, 15, 1971 (invoked because "there has been a prolonged decline in international monetary reserves of the United States, and our trade and international competitive position is seriously threatened”);

If “(A) the President declares a national emergency and formally notices the declaration of a national emergency in the Federal Register;

(B) the export licensing requirements or other restrictions on the export of crude oil from the United States under this subsection apply to 1 or more countries, persons, or organizations in the context of sanctions or trade restrictions imposed by the United States for reasons of national security by the Executive authority of the President or by Congress; or

(i) the export of crude oil pursuant to this Act has caused sustained material oil supply shortages or sustained oil prices significantly above world market levels that are directly attributable to the export of crude oil produced in the United States; and

(ii) those supply shortages or price increases have caused or are likely to cause sustained material adverse employment effects in the United States”

Invocations and Delegations of Authority

*No relevant citing references on Westlaw*

U.S. Section Code

50 U.S.C. §§ 1701–1707

Subject Matter

Known as the International Emergency Economic Powers Act (IEEPA), these statutes confer broad authority to regulate financial and other commercial transactions involving designated entities, including the power to impose sanctions on individuals and countries (1977)

Language Dictating When Powers Become Available

to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States” and "with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose. Any exercise of such authorities to deal with any new threat shall be based on a new declaration of national emergency which must be with respect to such threat”

Invocations and Delegations of Authority

These powers are exclusively invoked in tandem with the National Emergencies Act and have been invoked in 55 separate emergency declarations since 1978. On average, IEEPA declarations are renewed annually for about 9 years. For a recent example of an invocation of the International Emergency Economic Powers Act, see E.O. 13848, Imposing Certain Sanctions in the Event of Foreign Interference in a United States Election, 83 FR 46843, Sept. 12, 2018. For a comprehensive list of initial emergency declarations invoking IEEPA powers, see here.

The above tables are updated periodically, most recently on February 8, 2023. For a printable PDF version, last updated September 4, 2019, click here.

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No restrictions on president’s power to invoke during a national emergency

No meaningful restrictions on president’s power to invoke during a national emergency

Substantial restrictions on president’s power to invoke during national emergency

Requires Congressional declaration of national emergency to invoke

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Public Health

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Land Management

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