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Expert Brief

Methodology

How we assembled the Guide to Emergency Powers

Published: December 5, 2018

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 We discovered through this process that several provi­sions that exis­ted in 2013 were no longer in force, while others had been added.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.