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Monkeypox? Climate? Russia? What constitutes a national emergency?

Such declarations give presidents broad leeway to make policy, tap into funds

6 Photos
FILE - President Joe Biden speaks in the East Room of the White House in Washington, Tuesday, Aug. 9, 2022. Climate activists are clamoring for President Joe Biden to declare a national climate emergency, calls the White House has so far not headed.
FILE - President Joe Biden speaks in the East Room of the White House in Washington, Tuesday, Aug. 9, 2022. Climate activists are clamoring for President Joe Biden to declare a national climate emergency, calls the White House has so far not headed. (AP Photo/Susan Walsh, File) (Associated Press file photos) Photo Gallery

WASHINGTON — In November 1979, a little over a week after student militants seized control of the U.S. Embassy in Tehran and took 52 American citizens hostage, President Jimmy Carter issued Executive Order 12170 declaring a national emergency against Iran.

That order remains in effect today, renewed most recently in the weeks before last Thanksgiving by President Joe Biden, who noted then that “our relations with Iran have not yet normalized.”

The Biden administration’s declaration Aug. 4 of a public health emergency on monkeypox frees up federal resources to fight a virus that has already infected more than 10,000 people in the United States. But public health emergencies expire every 90 days, unless extended by the Department of Health and Human Services.

Those are different from national emergency declarations, which give presidents broad leeway to make policy and tap federal funds without congressional approval. That’s what activists have clamored for to better fight climate change, but Biden has held off despite energy shortages in much of the world and high gasoline prices at home.

“This is actually the true test of whether President Biden takes the climate crisis seriously,” said Karen Orenstein, climate director of Friends of the Earth.

Presidents have declared 76 national emergencies in the last nearly five decades, and 42 remain in effect, according to a list compiled by the Brennan Center for Justice at New York University Law School.

Biden has recently declared emergencies related to hostage-taking and detained U.S. nationals abroad, while extending one on Mali. He also has issued emergency declarations on Myanmar and Afghanistan and authorizing sanctions on Russia, Ethiopia and individuals linked to the global illicit drug trade.

Such declarations stem mostly from the National Emergencies Act of 1976, which came after President Richard Nixon issued a series of them, including on currency restrictions and a national postal strike.

The law requires that those declarations automatically end after a year, unless the president orders a renewal. Congress can also end emergencies, but doing so effectively requires a veto-proof two-thirds vote, which has never happened.

“The origin of the law was clearly an attempt to set limits on presidential power,” said Chris Edelson, author of “Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror.” “Before the actions passed, presidents could declare emergencies and no one really knew what it meant. And they stood for decades.”

An emergency declared in 1950 by President Harry S. Truman to combat communism globally in the context of the Korean War was still in effect in the 1970s, before the law.

Emergencies set since it took effect have similar, extended shelf lives, though. President George W. Bush’s emergency three days after the Sept. 11 attacks still stands. President Donald Trump declared COVID-19 a national emergency in 2020, and Biden has extended it through at least February 2023.

Only once has Congress even discussed thwarting emergency declarations, Edelson said. That was in 2019, when 12 Senate Republicans joined Democrats to block Trump’s efforts to declare one on the U.S.-Mexico border and put $6 billion-plus from the military and other federal funds toward building a wall. Trump used a veto to preserve his border emergency declaration until Biden nixed it upon taking office.

Sen. Marco Rubio, R-Fla., warned during the wall funding fight that allowing Trump to do what he wanted might let future Democratic presidents do something similar on the climate.

“It sets long-term precedents,” Rubio told CNBC in 2019.


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