A word on "emergencies" [WAS Re: Final Solution to the Crypto ]

["Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>]

I would like to dampen a little of the panic and FUD that seems to be
breeding on the question of the "national emergency" declared to keep the
bulk of the Export Administration Act regulations in effect after the
statute itself lapsed by its own terms.  [Note, by the way, that the EAA
rules are the *mild* ones.  The *tough* ones are still in force and are
not going away ... kill the EAA rules, and they start reclassifying
everything back to the Military List?]

Whether you like it or not, Congress has delegated to the President
sweeping authority to declare "national emergencies" due to foreign
threats.  In wartime the authority is very extensive; in peacetime almost
as great.  The authority is found in the "International Economic Emergency
Powers Act" (IEEPA).  While the President's determination that an
"emergency" exists is not reviewable, actions taken under IEEPA authority
*are* reviewable, indeed more reviewable than acts taken under the export
control laws. Of course since the delegation of power is broad, it's often
hard to win.

There have been LOTS of Presidential declaration of "emergencies" under
IEEPA and its predecessor statutes (e.g.the "trading with the enemy act",
which still applies in wartime).  Indeed, there are fewer today than
before Congress attempted to reform the system and required most of the
large number of emergencies in force to cease.  For example, every time
the President orders an embargo, e.g. against Iran, the statute requires
that he first declare an "emergency".

My point is not that Congress was wise to give the President this power. 
That's debatable; it's even more debatable that the intent was for it to
be quite as broad as the courts have found it to be (see e.g. Harold Koh's
book, The National Security Constitution, for more info). 

And, the point is not that Presidents are using this power in a wise or
measured way.  It's obvious that they are not.   At any given time
since WWI, many many (too many) "national emergencies" have been in force.

And, the point is especially not that this President was wise to declare
an emergency on these facts (although in his defense, several previous
presidents did exactly the same thing when previous editions of the EAA
lapsed; it seems to be something of a tradition...). 

Rather, my point is a simple one.  The fact that the President has
declared an emergency here is primarily a technical legal event.  It is
not a sign that martial law is about to be declared, that they are coming
to take you or your [fill in blank] away, or that anything fundamental has
changed.  Multi-year emergencies in which the executive uses one statute
to compensate for the Congressional decision/failure to pass another
statute is not, I submit, a particularly telling sign of a mature and
healthy democracy.  But this goes to large and gradual processes, not to
anything that suddenly happened. 

Again, for some background on all this, written before the Nov. 15
anouncements, see 
http://www.law.miami.edu/~froomkin/articles/planet_clipper.htm#POSTSCRIPT

A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506(fax) 
Associate Professor of Law |
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's warm here.