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When Congress

do the same to check the executive's usurpa-

act required that before the president could

tion of state authority and to restore the divi-

exercise an extraordinary power on the basis

or the states fail

sion of powers, as the governors did recently

of a national emergency, he had to declare

in those duties,

when they resisted Clinton's federalism order.

such an emergency to Congress and publish

that declaration in the Federal Register.1 4 0

the courts have

Yet even when Congress or the states fail in

those duties, the courts have no real warrant

The act also provided for the termination

no real warrant

for ignoring their own duty to secure consti-

of national emergencies thereafter, either by

for ignoring their

tutional principles through the cases or con-

joint resolution of Congress, or by presiden-

troversies that are brought before them.

tial proclamation, or

own duty to

secure constitu-

on the anniversary of the declaration

Congressional Solutions

tional principles.

of that emergency if, within the nine-

ty-day period prior to each anniver-

Watergate-Era Congressional Efforts to

sary date, the President does not

Check Executive Abuses

publish in the Federal Register and

transmit to the Congress a notice

Congress has not been entirely silent, of

stating that such emergency is to

course, especially during the administration

continue in effect after such anniver-

of President Richard Nixon--and particularly

sary.1 4 1

regarding Nixon's use of emergency powers to

prosecute the Vietnam War. In fact, in 1972

Congress created a special Senate committee,

Finally, the act requires the president to

the Special Committee on the Termination of

indicate the powers and authorities being

the National Emergency, to study the prob-

activated pursuant to the declaration of

national emergency142 and requires certain

lem of presidential usurpation through decla-

rations of national emergency.136

reports to Congress.143

Perhaps believing that presidential direc-

After the National Emergencies Act

tives were too firmly established to be chal-

became law, Congress turned its attention to

lenged directly, the committee focused on the

TWEA. Recall that TWEA was a product of

states of national emergency that undergird-

World War I. President Roosevelt later used

ed many of the most aggressive executive

TWEA to close the banks and seize private

usurpations of lawmaking power. Rechart-

holdings of gold. Congress amended TWEA

ered in 1974 as the Special Committee on

in 1977 to expressly state that it applies only

after Congress has declared war.144

National  Emergencies  and  Delegated

Emergency Powers, the committee, by a

After TWEA was amended, Congress

unanimous vote, recommended legislation

passed  the  International  Emergency

Economic Powers Act (IEEPA),145 which was

to regulate presidential declarations of

national emergency as well as congressional

fashioned to limit the emergency powers

oversight of such emergencies.137 That legis-

available to the president during peace-

time.146 The avowed purposes of the act are

lation became the National Emergencies

Act,1 3 8 signed by President Gerald Ford on

to "bring us back another measure toward

Government as the Founders intended" and

September 14, 1976.

"to conform the conduct of future emergen-

Effective September 14, 1978, the

cies to the constitutional doctrine of checks

National Emergencies Act terminated "[a]ll

and balances."1 4 7 Notwithstanding those

powers and authorities possessed by the

President, any other officer or employee of

noble ends, since the passage of IEEPA, there

the Federal Government, or any executive

has been an explosive growth in the number

agency . . . as a result of the existence of any

of declared national emergencies.

declaration of national emergency in effect

President Clinton's use of executive orders

on September 14, 1976."139 In addition, the

to generate multiple concurrent states of

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