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
1
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?
2
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?
3
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?
4
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?
5
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?
6