Proclamation No. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks

1. Proclamation No. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks • A national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me as President by the Constitution and the laws of the United States, I [sic] hereby declare that the national emergency has existed since September 11, 2001, and, pursuant to the National Emergencies Act (50 U.S.C. 1601 et seq.), I intend to utilize the following statutes: sections 123, 123a, 527, 2201(c), 12006, and 12302 of title 10, United States Code, and sections 331, 359, and 367 of title 14, United States Code. This proclamation immediately shall be published in the Federal Register or disseminated through the Emergency Federal Register, and transmitted to the Congress. This proclamation is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person. IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of September, in the year of our Lord two thousand one, and of the Independence of the United States of America the two hundred and twenty-sixth. George W. Bush

2. Proclamation No. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks 66 Fed. Reg. 48,199 (Sept. 14, 2001) • What is the legal purpose of this declaration? • What ends a state of national emergency? • What was the Feed and Forage Act of 1861 intended to authorize? • How did Nixon use the Feed and Forage Act of 1861? • When was the national emergency he relied on for contingent authority declared? • What does the National Emergencies Act require? • What does a formal declaration allow Congress to do?

3. Emergency Powers Laws • There are more than 70 emergency statutes that broaden the president's powers. • Why does Congress apply different standards in these laws? • Why does this make presidential flexibility in declaring an emergency more problematic? • Is it better for Congress to give the President broad powers in an emergency or to let the president use his intrinsic powers? • How does a statute change subsequent review? • Can it embolden the president?

4. Judicial Review of Emergency Declarations • What did the court find when plaintiffs challenged Regan's declaration of emergency trade restrictions on Nicaragua? • In Milena Ship Mgmt. Co. v. Newcomb, 804 F. Supp. 846, 850 (E.D. La. 1992), aff’d, 995 F.2d 620 (5th Cir. 1993) the court said it could review the president’s orders, but then said everything he wanted to do was fine. Is this different from finding it non-judiciable? • If the declaration of an emergency is non-judiciable, what do Congressional restrictions on the declaration mean? • Could congress prevent a declaration of emergency?

5. State Emergency Powers Laws • States, including LA, give governors the power to declare emergencies and to suspend many state laws and regulations during these emergencies. • How can this be a problem? • Why do governors like to declare emergencies? • Can emergency laws give agencies expertise they did not have before the emergency? • Supplies? • Personnel?

6. Takings in National Security Emergencies • What about regulatory takings, i.e., when someone cannot get paid or complete a business deal because of changes in policy in dealing with a foreign country? • Is this the same as if the government actually took the property for direct use? • Would Truman have had to pay for the costs related to the steel seizure if the court had found that he had the authority for the seizure? • Would the result be different for the seizure of property which is then used by the government?