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文献出处：Thronson P. Toward Comprehensive Reform of America’s Emergency Law Regime [J]. University of Michigan Journal of Law Reform, 2013, 46(2).
原文
TOWARD COMPREHENSIVE REFORM OF AMERICA’S
EMERGENCY LAW REGIME
Patrick A. Thronson
Unbenownst to most Americans, the United States is prently under thirty presidentially declared states of emergency. They confer vast powers on the Executive Branch, including the ability to financially incapacitate any person or organization in the United States, ize control of the nation’s communications infrastructure, mobilize military forces, expand the permissible size of the military without congressional authorization, and extend tours of duty
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without connt from rvice personnel. Declared states of emergency may also activate Presidential Emergency Action Documents and other continuity-of-government procedures, which confer powers on the President—such as the unilateral suspension of habeas corpus—that appear fundamentally oppod to the American constitutional order.
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Although the National Emergencies Act, by its plain language, requires Congress to vote every six months on whether a declared national emergency should continue, Congress has done so only once in the nearly forty-year history of the Act.
This Note and an accompanying online compendium attempt, for the first time since the 1970s, to reach a reasonably complete asssment of the scope and legal effects of the thirty national emergencies now in effect in the United States. The Note also propos specific statutory reforms to rein in the unchecked growth of the emergencies and political reforms to subject the vast executive powers granted by the U.S. Emergency law regime to the democratic process.
INTRODUCTION
“A national emergency exists by reason of the te rrorist 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,” President George W. Bush proclaimed on September 14, 2001. “I hereby declare that the nationa l emergency has existed since September 11, 2001.” Over a decade later, with Osama bin Laden dead and the infrastructure of al Qaeda “taken apart,” this same emergency, and the vast powers it bestows, is still with us—along with twenty-nine other national emergencies that grant the President
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greatly enhanced powers to regulate the nation’s economic, military, and foreign affairs. Although Congress has been required by statute, for nearly forty years, to vote every six months on whether a national emergency should continue, it has done so only once.
外文文献翻译
暴虎冯河The current proliferation of national emergencies is exactly what the National Emergencies Act (NEA) was enacted to prevent. The NEA has failed entirely in this regar
d. The story of its failure is a story of how the United States Congress
achieved a moment of clarity about the vast emergency powers it had been delegating to the President for decades and the quantity and scope of unchecked emergency powers then in effect. It is a story of how Congress, with substantial support and cooperation from the Executive Branch, constructed a framework intended to comprehensively regulate and limit future declarations of national emergency. And it is a story of how Congress, enabled by the judiciary, subquently rendered its own work superfluous by consigning the NEA’s safeguards against the abu of emergency powers to a state of disu and irrelevance.
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I. METHODOLOGY
This Note catalogues statutory provisions and presidential orders containing powers that are explicitly activated by a presidential
declaration of national emergency, analyzes the most far-reaching of the powers, and p
ropos reforms. The accompanying online compendium of emergency powers provides a full description of my methodology.
This Note draws on a variety of primary sources, primarily statutes, presidential orders, and other government documents. Federal law provides for presidential declarations of emergency that are analogous to a “national emergency” but are classified differently and trigger authorities beyond tho activated by a declaration of national emergency. The additional types of emergencies include “national curity emergency,” “catastrophic emergency,” “defen emergency,” “air defen emergency,” and “civil emergency.”
My analysis concludes that a declaration of national emergency makes available to the President powers contained in at least 160 provisions of statutory law and dozens of Executive Orders, presidential directives, and other regulations. The ctions that follow analyze some of the provisions with the most far-reaching effects on the individual liberties and livelihoods of United States residents and on the country’s international relations. II. LEGISLATIVE HISTORY
This Part examines the legislative history of the NEA and the text of the Act. It eks in part to ascertain the legislative intent of
Congress—as expresd in revisions to the legislation, committee reports, and floor debates—with respect to the Act, and examine whether that intent was betrayed. Understanding this esntial history is indispensable to meaningful reform.
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