These continuations are the product of the 1976 National Emergencies Act, which, ironically, was intended in part to prevent such declarations from being open-ended. Per the Act, if not terminated by Congress or the President, National Emergency declarations automatically expire after a year unless the president issues a continuance, and these continuances have become a matter of course.
In the past year, President Obama has signed continuations of National Emergency declarations for Zimbabwe, Cuba, Libya, Ivory Coast, the Middle East Peace Process, Sudan, Weapons of Mass Destruction, Democratic Republic of the Congo, Lebanon, Significant Transnational Criminal Organizations, the Former Liberian Regime of Charles Taylor, the Western Balkans, the Risk of Nuclear Proliferation Created by the Accumulation of Weapons-Usable Fissile Material in the Territory of the Russian Federation, Belarus, Iraq, Syria, Somalia, and Iran (2); nineteen in all. Nineteen concurrent "national emergencies." Most Americans, and perhaps most politicians, would be hard pressed to explain the circumstances surrounding one-third of these emergencies, let alone all nineteen. The mere existence of some of these declarations would doubtless be a surprise to many.
The nature of most national emergency declarations is not a sweeping omnipotence granted to the Commander in Chief. The National Emergencies Act requires the president to specify the provisions in the law upon which his actions under each declaration are authorized. Many of the current declarations involve only economic measures and sanctions that are being imposed in a targeted and limited context. But presidents seem loath to yield back even these limited powers granted by the declarations. So the "emergencies" go on... and on.
The world is surely a dangerous place, and responsible governance requires not only vigilance, but the ability to exercise a variety of powers. But perhaps nothing illustrates the problem with the perpetual "emergency" as well as the following. Last year, President Obama extended the National Emergency with respect to terrorism that President Bush signed after the devastating attacks on America by al-Qaeda on September 11, 2001. In his notice to Congress, President Obama wrote:
CONTINUATION OF THE NATIONAL EMERGENCY WITH RESPECT TO PERSONS WHO COMMIT, THREATEN TO COMMIT, OR SUPPORT TERRORISMThe date the president signed and issued this notice warning of the "immediate threat of further attacks"? September 11, 2012, the very day of the attack on the consulate in Benghazi, Libya. While the ink was still drying on the words "continuing and immediate threat of further attacks against United States nationals" and "an unusual and extraordinary threat," the assault was underway. Because the readiness that a "national emergency" implies was just a facade (at least in Benghazi,) the United States was caught flatfooted, unable to adequately respond in time. Four Americans were killed and the consulate was burned.
On September 23, 2001, by Executive Order 13224, the President declared a national emergency with respect to persons who commit, threaten to commit, or support terrorism, pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701-1706). The President took this action to deal with the unusual and extraordinary threat to the national security, foreign policy, and economy of the United States constituted by the grave acts of terrorism and threats of terrorism committed by foreign terrorists, including the terrorist attacks on September 11, 2001, in New York and Pennsylvania and against the Pentagon, and the continuing and immediate threat of further attacks against United States nationals or the United States. Because the actions of these persons who commit, threaten to commit, or support terrorism continue to pose an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States... I am continuing for 1 year the national emergency[.]
We will never stop every attack. The enemies of the United States are legion and seemingly tireless. Yet the principle at work here is at least as old as Aesop and the boy watching the sheep. When everything is an emergency, nothing is. While these declarations are not false alarms, neither do they reflect the imminence and urgency normally associated with a true emergency. Rather, they tend to obscure actual immediate threats. Therefore, as nineteen echoes of "national emergency!" rang in the air, the wolf struck in Benghazi. Unless our leaders learn to resist the profligate invocation of "emergency," the wolves simply have to wait until overuse once again breeds complacency before they strike. But then, the emergency will be all too real.