National Emergencies Act: Flawed from the Beginning

by | Mar 21, 2019

National Emergencies Act: Flawed from the Beginning

by | Mar 21, 2019

There has been much debate about President Trump’s declaration of a national emergency on our southern border. Critics complain either that no real emergency exists and/or that Trump’s actions are unconstitutional. Too often, how one feels about the issue of immigration shades one’s view of the declaration. Open borders advocates detest it and condemn the declaration, but those in favor of less immigration generally like it.

No matter where one comes down on this immigration issue, anyone holding any loyalty to our written Constitution should decry the National Emergencies Act itself. In declaring the emergency, Trump specifically relied on “sections 201 and 301 of the National Emergencies Act.” In 1976, Congress granted to the president the authority to declare an emergency and to invoke “special or extraordinary power[s].”

A careful study of Article II of the Constitution, which sets forth the president’s authority, mentions nothing about special or extraordinary powers outside of the instrument. Similarly, Article I, which deals with congressional authority, does not allow Congress to delegate power to the president nor does it grant Congress (or any other branch) special or extraordinary powers outside of those powers specifically enumerated. “The powers of the federal government,” Madison explained in the Virginia ratifying convention, “are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”

Read the rest at the Independent Institute.

William J. Watkins Jr.

William J. Watkins, Jr. is a Research Fellow at The Independent Institute and author of the Independent books, Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution, Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy, and Patent Trolls: Predatory Litigation and the Smothering of Innovation.

View all posts

Our Books

Shop books published by the Libertarian Institute.

libetarian institute longsleeve shirt

Our Books

cb0cb1ef 3fcb 417d 80d8 4eef7bbd8290

Recent Articles

Recent

On Applying Rothbardian Populism

On Applying Rothbardian Populism

Just as state action is a zero-sum game, so is politics: some win and others lose. But if the term “populism” is supposed to be meaningful, populism must have some distinctive elements for it not to be confused with mere democracy. Although politics occur in different...

read more
The 1775 Two Step That Led to American Independence

The 1775 Two Step That Led to American Independence

As Americans prepare to celebrate the 249th anniversary of the Declaration of Independence, we should also toast the 250th anniversary of a savvy political two-step that paved the way to formally breaking with Britain the following year. “We, your Majesty’s faithful...

read more
“Smart War” and State Terrorism

“Smart War” and State Terrorism

On June 16, 2025, President Donald Trump threatened the 10 million inhabitants of Tehran, Iran, with death, for their government’s alleged nuclear aspirations: Iran should have signed the “deal” I told them to sign. What a shame, and waste of human life. Simply...

read more

Pin It on Pinterest

Share This