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JULY 1994

Article 4 - States of Emergency 

Unlike many countries, the United States does not 
have a constitutional or legal regime either for 
declaring "states of emergency" or otherwise for 
imposing emergency rule by the executive branch.  
The U.S. military does not exercise criminal 
jurisdiction over civilian persons within the United 

Federal Level. The U.S. Constitution and 
implementing federal statutes do authorize the 
President in limited and clearly defined 
circumstances to use federal troops to control 
domestic violence, suppress insurrections and 
enforce federal law.  These laws do not, however, 
authorize the executive branch to suspend or 
interfere with the normal operations of the other 
branches of the national government (the Congress 
and the judiciary) or to permit derogations from 
fundamental rights.  Indeed, with only one limited 
exception (the right of habeas corpus, which 
Congress may temporarily suspend when public safety 
so requires), constitutional rights remain in effect 
at all times.

Article IV, Section 4 of the Constitution imposes on 
the federal government the obligation to protect a 
state "on Application of the [State] Legislature, or 
of the [State] Executive (when the Legislature 
cannot be convened) against domestic Violence."  
Article I, Section 8 authorizes the Congress "[t]o 
provide for calling forth the Militia to execute the 
Laws of the Union, suppress Insurrections and repel 
Invasion."  This is the basis for intervention by 
federal troops or marshals in civil disorders 
occurring within the States.

The Constitution also provides, in Article II, 
Section 3, that the President "shall take Care that 
the Laws be faithfully executed."  This provision 
has been interpreted to grant the President 
authority to enforce federal laws through 
extraordinary means if the President determines that 
unlawful obstructions or rebellion make it 
impracticable to enforce the laws of the United 
States by the ordinary course of judicial 
proceedings.            Chapter 15 of Title 10, U.S. 
Code, defines the scope of the  constitutional 
grants of emergency powers.  Pursuant to the 
President s authority under Article IV, Section 4 of 
the Constitution, section 331 of Title 10 provides 
authority to the President to dispatch troops on 
request of the state s governor or legislature.  The 
sending of troops is not, however, automatically 
triggered by the request of a state pursuant to this 
section.  The President must use his own judgment as 
to whether the situation warrants the use of armed 
forces.  Traditionally, three conditions have 
existed before troops have been sent: (1) the actual 
existence of domestic violence, (2) a statement that 
the violence is beyond the control of the state 
authorities, and (3) a proper request from the state 
governor or legislature.

Sections 332 and 333 of Title 10 provide authority 
for the President to dispatch troops without State 
request in order to enforce federal law, prevent 
obstruction of the execution of federal law, carry 
out federal court orders or protect civil rights.  
These provisions overlap to some extent, but both 
are aimed at violence or insurrection obstructing or 
interfering with the enforcement of federal laws 
within a state.  Section 332 is aimed generally at 
resistance to the carrying out of federal laws; 
Section 333 is concerned with the forcible 
interference with the civil rights of individuals 
and with violence aimed at preventing the 
enforcement of court orders.  These provisions were 
invoked by the President to enforce racial 
desegregation orders in certain states during the 
1950 s and 1960 s.

Section 334 of Title 10 requires that, in all cases 
in which the President deems it necessary to use 
armed forces pursuant to his authority under Title 
10, the President must issue a proclamation ordering 
the insurgents to disperse.  Such proclamations are 
followed by an Executive Order directing the 
appropriate use of the armed forces to suppress the 
violence.  They are also subject to Congressional 

In addition to the President s Title 10 authority, 
there are further statutory grants of emergency 
powers to the President.  The National Emergencies 
Act, 50 U.S.C.    1601 et seq., confers upon the 
President the authority to declare national 
emergencies and establishes procedures to be 
followed by the President in exercising emergency 
power.  50 U.S.C.    1601 et seq.  Most importantly, 
the Act requires the President to report to Congress 
on actions taken and funds expended pursuant to a 
declaration of national emergency.  The Act further 
allows Congress to terminate such states of 
emergency by enacting into law a joint resolution.  
This Act has typically been used in conjunction with 
the International Emergency Economic Powers Act 
(IEEPA, described in the next paragraph) to impose 
economic sanctions against other nations, rather 
than to deal with domestic or national security 

IEEPA, 50 U.S.C.    1701 et seq., allows the 
President, upon determination that an unusual and 
extraordinary threat exists, to issue executive 
orders investigating, regulating or prohibiting 
certain international transactions.  In addition, 
the President may issue executive orders 
investigating, regulating, and otherwise affecting a 
wide variety of transactions in which foreign 
interests are implicated.  In practice, the use of 
IEEPA has been primarily limited to the 
implementation of economic sanctions (often mandated 
by the United Nations) on the territory of the 
United States.  IEEPA also imposes Congressional 
reporting requirements upon the President.  The 
Congress may terminate an IEEPA emergency power 
granted to the President by passing a joint 
resolution pursuant to certain provisions of the 
National Emergencies Act.

Most of the President s other congressionally-
mandated emergency powers, particularly in the case 
of natural disasters, are delegated to the Federal 
Emergency Management Agency (FEMA).  These powers 
include, among others, his authority under the 
Disaster Relief and Emergency Assistance Act, 42 
U.S.C.    5121 et seq.; the Fire Prevention and 
Control Act, 15 U.S.C.    2201 et seq.; the Flood 
Disaster Protection Act, 50 U.S.C.    4001 et seq.; 
the Federal Civil Defense Act, 50 U.S.C.    2251 et 
seq.; and the Earthquake Hazards Reduction Act, 42 
U.S.C.    7701 et seq.  FEMA acts as the focal point 
for all planning, preparedness, mitigation, response 
and recovery actions for such catastrophic domestic 
emergencies.  FEMA has no authority to suspend or 
infringe constitutional rights in the exercise of 
its duties.  The Agency s purpose is to coordinate 
emergency activities at the national, state, and 
local levels, fund emergency programs and provide 
technical guidance and training.

The Posse Comitatus Act, 18 U.S.C.   1385, forbids 
the President to use the armed forces to "execute" 
the laws except where authorized by the Constitution 
or by another act of Congress.  18 U.S.C.   1385.  
Under the Act, prohibited actions include 
interdiction of vehicles, vessels, and aircraft; 
searches and seizures; arrests and "stop and frisk" 
actions; surveillance or pursuit of individuals; 
investigation; and interrogation.  Thus, in a 
disaster relief situation, absent any other 
legislation, federal troops must avoid a direct law 
enforcement role.  They may, however, render 
humanitarian assistance, including the provision of 
emergency medical care to civilians and the 
destruction of explosives found in civilian 

State and Local Levels.  At the state and local 
levels, a wide variety of emergency authorities 
permit the state executive branches (state 
governors, city mayors, county executives) to take 
emergency actions.  These authorities are based on 
the general police power that is reserved to the 
states under the U.S. Constitution.  In an emergency 
situation, a state may take reasonable actions 
necessary to preserve public health, safety and 
welfare, even if those actions incidentally infringe 
on otherwise protected rights.  For example, states 
may impose curfews in situations of civil unrest or 
to prevent sabotage and espionage in times of war, 
establish quarantines during an epidemic, restrict 
water usage during a severe drought, and even 
regulate interest rates during times of economic 
emergency.  These various state-imposed regimes may 
not, however, limit constitutional rights or 
infringe on the nonderogable rights specified in 
Article 4 of the Covenant.

Judicial Review.  The federal courts have the power 
to review the exercise of emergency powers by the 
federal or state authorities, and have exercised 
considerable judicial scrutiny in this area.  
Judicial review has included examination of both 
substantive authority and procedural issues.  As a 
general rule, cases in which the exercise of 
emergency power has resulted in the restriction of 
individual rights have been subjected to careful 
judicial review.  See, e.g., Ex parte Milligan, 71 
U.S. (4 Wall.) 2 (1886) (voiding a presidential 
order suspending habeas corpus); Youngstown Sheet & 
Tube v. Sawyer, 343 U.S. 579 (1952) (invalidating 
the seizure of steel mills pursuant to Presidential 
order during the Korean War); Dames & Moore v. 
Regan, 453 U.S. 654 (1981) (judicial review of 
constitutionality of President's orders regarding 
disposition of blocked Iranian assets under IEEPA).

Emergency Powers in Practice.  Two recent examples 
of the use of federal emergency powers include the 
1992 Los Angeles riots and the aftermath of 
Hurricane Andrew in 1992.  In response to the riots 
and after receiving a request from the Governor of 
California, the President, pursuant to the authority 
vested in him by the Constitution and laws of the 
United States, including 10 U.S.C., Chapter 15, 
issued a proclamation ordering all persons engaged 
in acts of violence to cease and desist.  
Immediately following the proclamation, the 
President issued an executive order directing 
federal law enforcement officers and the armed 
forces, including elements of the National Guard, to 
suppress the violence.

Throughout the emergency, the Department of Justice 
remained the lead federal agency, coordinating the 
response of all other federal agencies involved, 
including the Department of Defense (DOD).  Although 
military forces had the authority to engage in 
direct law enforcement activities, for the most part 
they did not do so.  Because the worst rioting had 
ended prior to the arrival of federal troops and 
because military commanders preferred not to involve 
soldiers in searches, arrests, pursuits, and other 
direct law enforcement activities, the military's 
principal role was to increase the security of the 
area, thereby deterring further rioting.  Civilian 
agencies continued to perform the majority of law 
enforcement activities.

In response to the devastation of Hurricane Andrew 
in August 1992, the President declared a major 
disaster under the Stafford Disaster Relief Act (42 
U.S.C.    5121-5203) for certain counties in 
southern Florida.  When it became apparent that 
significant federal assistance would be needed in 
the disaster area and following a request from the 
Governor of Florida, the President authorized DOD to 
deploy a significant force to the disaster area to 
provide humanitarian relief.

Pursuant to the Stafford Act and the Federal 
Response Plan, the Federal Emergency Management 
Agency (FEMA) was the lead federal agency and had 
the authority to coordinate the activities of all 
federal agencies, including DOD.  FEMA tasked DOD to 
provide assistance requested by state officials, and 
the joint task force had no authority to engage in 
relief activities other than as directed by FEMA.  
Unlike the Los Angeles deployment, the federal 
troops in Florida were not authorized to engage in 
law enforcement activities.   U.S. Understanding.  
In keeping with its general understanding of the 
requirements of equal protection, as discussed in 
connection with Article 2,  the United States 
submitted the following understanding with respect 
to paragraph 1 of Article 4 of the Covenant:

     The United States further understands the 
prohibition in paragraph 1 of Article 4 upon 
discrimination, in time of public emergency, based 
"solely" on the status of race, color, sex, 
language, religion or social origin not to bar 
distinctions that may have a disproportionate effect 
upon persons of a particular status.

In other words, distinctions having a 
"disproportionate effect" upon persons of a 
particular status, but not in fact based on that 
status at all, are not necessarily prohibited.  
Thus, for example, a curfew could be imposed as 
appropriate in view of safety requirements even if, 
due to patterns of residence, this affected certain 
groups more than others.
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