What Happens During a National Emergency?

With President Donald Trump declaring a national emergency to prevent the spread of coronavirus, many want to know: What happens when a national emergency is declared?

A national emergency proclamation takes place under the 1976 National Emergencies Act. It gives the president a host of new powers and allows for the waiver of laws to help officials and healthcare providers nimbly respond to the virus.

In a press conference on March 13, 2020, President Trump said that “through national determination, we will overcome the threat of the virus.” Trump said: “To unleash the full power of the federal government, I am officially declaring a national emergency. The action I am taking will open up access to up to $50 billion…for states, and territories and localities.”

Trump said the Health and Human Services secretary will be able to give healthcare workers and hospitals maximum flexibility to respond to the virus and patients’ needs due to no longer being bound by laws for things like “tele health.” That allows doctors in other states to help states with the greatest need. The requirement of a three-day hospital stay before admission to a nursing home would be waived. In addition, rules could be waived that severely restrict where hospitals can care for patients within hospitals themselves, among other things. “We will eliminate or remove any obstacle to give our people the care they need and are entitled to,” said Trump. Trump said he’s waived interest on federal student loans for the unforeseen future. Regulations will be suspended that will get in the way of treating patients.

According to Bloomberg, Trump was also expected to invoke the Stafford Act “to open the door to more federal aid for states and municipalities.” You can learn more about the Stafford Act here. Here’s the full language of it.

Bloomberg reports that it’s rare for national emergencies to be invoked, especially for public health situations, but President Bill Clinton did so in 2000 over West Nile Virus.

The Brennan Center offers a detailed guide on the impact of national emergency declarations.

According to VOA, when a president announces a national emergency, they gain the powers invested in 100 statutes. Elizabeth Goitein, director of the Brennan Center for Justice’s Liberty & National Security Program, told VOA: “When a president declares an emergency declaration, he at that moment has access to all of the laws that say in a national emergency the president can do X, whether or not those powers relate to the emergency at hand.”

The Brennan Center documents put those powers at “123 statutory powers that may become available to the president when he declares a national emergency.”

Here’s what you need to know:

The Declaration Would Give Trump Dramatic Powers But It’s Not Clear Which He Would Use

According to the Voice of America, a national emergency declaration “also empowers a president to take draconian measures in the name of national security.” The site gave as an example a 1941 law that would theoretically allow a president “to shut down the internet and even freeze people’s bank accounts.”

According to Voice of America, some past presidential actions that stemmed from national emergencies include Japanese internment camps, President Abraham Lincoln famously suspending the writ of habeas corpus, and President George W. Bush increasing government surveillance programs after September 11, 2001.

Business Insider reports that, under national emergencies, presidents are empowered to do things like “seize property, assign military forces abroad, institute martial law, restrict travel.” However, Business Insider notes that “Both Congress and the Supreme Court may modify, limit, or revoke the President’s special powers, specifically if they deem his actions unconstitutional.”

The Brennan Center has a detailed chart listing the national emergency statutes in detail. You can read it here. Among them are things like:

“Secretary of Health and Human Services may waive confidentiality, certification, sanctions, and other provisions as necessary to supply public health services.”

“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.”

“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.”

“President may suspend the operation of provisions regulating the storage, transportation, disposal, procurement, handling, and testing of chemical and biological weapons, including the prohibition on testing such weapons on human subjects.”

“Certain laws governing the disposal of garbage at sea – including restrictions on disposal near land and a prohibition on the discharge of waste that may contain toxic chemicals or heavy metals – do not apply.”

“Government may take possession of land specified in Tennessee Valley Authority Act for the purpose of manufacturing explosives or for other war purposes.”

“The Secretary of the Interior, upon a recommendation of the Secretary of Defense, may suspend operations under any lease, with payment of just compensation to the lessee whose operations are suspended, for any lease of land of the outer Continental Shelf.”

“Legal provisions intended to protect farmland do not apply to the acquisition or use of farmland for national defense purposes.”

“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.”

“President may authorize the Secretary of the Treasury to permit duty-free importation of supplies needed for use in emergency relief work.”

The Atlantic reported: “The moment the president declares a ‘national emergency’—a decision that is entirely within his discretion—he is able to set aside many of the legal limits on his authority.” Presidential powers include the ability to “allow the president to deploy troops inside the country to subdue domestic unrest,” Atlantic reports.

U.S. Senator Chuck Schumer, a vehement Trump critic, wrote on Twitter, “We’ve been calling for President Trump to do this for days. Americans will support an emergency declaration to extend assistance to Americans who need it. But he must not overstep his authority or indulge his autocratic tendencies for purposes not truly related to this crisis.”

Under a declaration, FEMA is in charge, CNBC reports.

According to The Independent, the Stafford Act, which dates to 1988, allows FEMA to help state and local governments with the $40 billion it controls in disaster relief. The site explains that Trump has invoked the Stafford Act before to deal with situations like California wildfires and flooding.

Coronavirus was previously declared a public health emergency. Trump also controversially declared a national emergency to divert funding to build the wall at the U.S./Mexican border. That declaration came under the National Emergencies Act of 1976.

According to Business Insider, a national emergency can be declared if the country is “threatened by crisis, exigency, or emergency circumstances.”

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