September 15, 2017
In 2015, the Obama administration announced that Venezuela had thrown the United States into a “national emergency” because Venezuela constituted “an unusual and extraordinary threat to the national security and foreign policy of the United States.” On August 25, the Trump administration cited this ongoing emergency to justify financial sanctions against Venezuela that are likely to deepen the economic crisis there and generate greater human suffering.
How does a country with a fraction of the US’s military budget and a government with no history of international aggression cause a national emergency in the most powerful state in the world? Sure, the short answer is always “politics.” But in this case, there’s a forty-year history of presidential overreach and unaccountability that calls for a closer look.
In 1976, the House and Senate, with Democratic supermajorities in both, were looking to curb executive power in the wake of the Vietnam War. On trial was the concept of the “national emergency,” a term derived from an amendment to the 1917 Trading with the Enemy Act (TWEA). This World War I law gave the president authority to impose unilateral sanctions and restrict trade with warring enemy countries. Initially, it said nothing about national emergencies. But in 1933, President Roosevelt amended Trading with the Enemy to include executive authority over “any transactions in foreign exchange, transfers of credit between or payments by banking institutions as defined by the President” during a time of national emergency. Roosevelt declared the first of the US’s newly defined national emergencies, and promptly froze a majority of bank assets to prevent bank runs during the heart of the Great Depression.
This might have been well and good had Roosevelt ended his national emergency. Unfortunately, he and his successors failed to do so. The emergency would last until Congress ended it in 1976. In expanding the president’s peacetime powers to include former war powers, Roosevelt set the stage for decades of executive expansion. According to a 1973 Senate report on the issue, Roosevelt established precedent: “In time of crisis the President should utilize any statutory authority readily at hand, regardless of its original purposes, with the firm expectation of ex post facto congressional concurrence.” To be clear, that’s the US government admitting that the president can do what he wants, when he wants, and Congress will back him up later if there’s a shred of legal evidence to support his actions.
Officially, the 94th US Congress (Jan. 1975 to Jan. 1977) wanted to recalibrate its relationship with the executive branch and limit presidential power. It was aware that “section 5 (b) [of the Roosevelt national emergency amendment to the TWEA] has become essentially an unlimited grant of authority for the President to exercise, at his discretion, broad powers in both the domestic and international economic arena, without congressional review,” as a House International Relations Committee report detailed. However ? the two acts the Congress passed over the next two years, the National Emergencies Act (NEA) and the International Emergency Economic Powers Act (IEEPA) ? ended up merely formalizing the process and powers related to a national emergency.
The NEA ended the current emergencies, required yearly extensions for any new emergency, and put in place language mandating that powers exercised by the president be traceable to a written law. In doing so, the National Emergencies Act “provided for [the] statutory resolution and definition concerning … national emergencies” as a 1976 House Judiciary Committee report on the bill stated, but the act did not “provide for orderly implementation and termination of future national emergencies,” which the same House report also called for. This fact becomes clear when examining the history of national emergencies since the passage of the two laws. The yearly extensions have been formalities, shown by the fact that so far 28 of them have lasted for more than a decade. Of the 54 total emergencies declared since 1976, 28 are still active. With the passage of the International Emergency Economic Powers Act in 1977, Congress explicitly gave the president the right to impose sanctions during a national emergency, circumventing their own attempt to limit presidential authority to powers written into law … by writing the power into law for him.
Presidents took that power and ran with it. The national emergency Jimmy Carter declared against Iran immediately after the passage of the NEA and IEEPA is still going today, as are the accompanying sanctions. The sanctions against Nicaragua in the 1980s were the product of a national emergency. The sanctions against Iraq in the 1990s have been estimated to have left at hundreds of thousands of Iraqi children dead. These sanctions also stemmed from a so-called “national emergency”. Currently, 18 countries are causing “national emergencies” in the US, and are therefore sanctioned. If that sounds silly, it should. The list includes Venezuela, which analysts believe will suffer greatly from sanctions targeting Venezuelan debt and oil profits.
Congress passed the National Emergency and International Emergency Economic Powers Acts to rebalance the relationship between the executive and the legislative branches of government. By codifying the process and powers surrounding a so-called national emergency, they instead gave the executive a primary vector to carry out unilateral foreign policy. Congress should consider reexamining this legislation, as it has clearly strengthened the president’s ability to carry out extraordinary and potentially destabilizing and harmful foreign policy measures, without any congressional involvement. A first step could be for Congress to set forth concrete criteria for what can be called a national emergency, particularly in cases that lead to sanctions.