Lessons from Energy History for the Use of Presidential Emergency Powers
Many members of congress have objected to President Donald Trump’s attempt to use his national emergency powers to provide money for the construction of additional wall along the Mexican border, coming after the legislative branch failed to appropriate the funds.
There remains, however, a widespread assumption that the president will get his money. Presidents of both parties have gone unchecked in their use of emergency authorities, it is argued, making the success of the current claim of such authority appear inevitable. Moreover, with Republicans in control of the senate, the president enters a veto fight as the clear favorite.
As an energy historian, I have looked closely at how three previous U.S. presidents asserted emergency authority to deal with the threat of dependence on oil imported from dangerous places around the world. For our 45th president, these precedents are not very helpful.
President Dwight Eisenhower in 1959 declared U.S. dependence on foreign oil a threat to national security. In response to the emergency, he ordered a virtual ban on imports from the Middle East.
Ike’s “wall” against some foreign oil suggested that presidential powers to declare emergencies could be robust. Members of congress and federal judges reviewing more current attempts to expand executive power may, however, want to note ways in which these long-forgotten quotas on oil imports differed from the current proposal.
First, a national Commission on Foreign Economic Policy laid the groundwork for presidential action. Its 1954 report called for greater involvement of the Defense Department in assessing the threat of over reliance on certain imports. There was an element of protectionism in the commission’s recommendations.
Still, it backed up its concerns about national security. During the Cold War, Soviet submarines could interrupt the delivery of strategic supplies to the United States. And, as a temporary ousting of the Shah of Iran had just illustrated, there were risks to depending on basic commodities like oil from unstable areas of the world.
Eisenhower acted under the authority of the Trade Agreements Extension Act, passed in 1955 with the strong backing of the oil producing states. The law provided that if an investigation found that the quantities of a major import threatened national security, the president “shall take such action as he deems necessary to adjust the imports of such article to a level that will not threaten to impair national security.” The intent of congress to authorize the president’s executive order was clear.
Ike took the legislative mandate for an “investigation” seriously, in part because the Justice Department warned the legal case for action would be weakened if he didn’t. He asked, first, a special committee that included major cabinet agencies and, then, the Office of Civil and Defense Mobilization (the precursor of the Federal Emergency Management Agency) to provide reports that evaluated the pros and cons of limiting oil imports.
These studies examined criteria that could be used to justify such limits. They concluded that dependence on oil from Canada entailed little risk. It was delivered by land, virtually eliminating the threat of Soviet interdiction; its government was stable and friendly.
By contrast, tankers transporting Middle Eastern oil across the Atlantic were vulnerable to attack; the stability of the regimes there was less assured. Detailed analysis by the appropriate institutions of government provided a strong legal foundation for Ike’s eventual decision, though some advisors continued to argue against import quotas based on policy considerations.
Sixteen years later, President Gerald Ford announced he would issue an executive order phasing in a fee of $3 per barrel on imported oil as a matter of national security, invoking the trade law used by Eisenhower. Frustrated with the slow pace of action on energy legislation, he told aides arguing against unilateral action: “All Congress has done is talk. Persuasion has not moved them at all. We need comprehensive action with shock treatment.”
After Ford imposed the first dollar of the fee, the house and the senate voted to suspend Ford’s emergency authority by votes of better than two to one. Ford vetoed congressional action, but both sides then agreed to postpone a big showdown over the tax, along the lines suggested by Ford chief-of-staff Donald Rumsfeld. Congress would hold off on its vote to override the veto; Ford would delay the final two dollars of the tax.
A U.S. appeals court ruled Ford’s fee illegal, on the basis that congress had authorized oil quotas, not fees. Ford kept his fee alive with an appeal to the Supreme Court. Before the high court could act, however, congress completed action on the Energy Policy and Conservation Act of 1975, at which point Ford terminated the import fee.
These events showed that a Democratic congress could rein in the emergency powers of a Republican president. But both sides were reluctant to push to the confrontation too far.
President Jimmy Carter won congressional approval for most of energy his legislation during his term in office, usually by wide margins. His proposals for taxes on gasoline and crude oil, however, fell short in the congress. He believed the country needed to do more to stem rising oil imports. In 1980, he imposed by executive order a fee of $4.62 on each barrel of foreign oil, as part of his anti-inflation program. The fee faced intense opposition.
A federal judge ruled the fee exceeded the president’s legal authority. Then, resolutions in the house and senate to block the fee carried by overwhelming majorities. After Carter vetoed the measure, the congress overrode his veto, again by huge margins. For Carter, whose batting average in congress was much higher than generally recognized, the override of his veto on oil fees was the worst legislative defeat of his presidency.
The Carter experience illustrated that even when the president’s party controlled both houses of congress, he would not be given free rein in exercising authorities for emergency action.
The legislative basis for emergency actions by the presidents has changed over the years. Still, there have been basic principles seen in the energy cases: presidents must present a compelling case for their declarations of emergency, and congresses and courts need not always agree with the executive’s interpretation of the law.
As congress and the courts consider the current debate over “the wall,” they should weigh whether approval of the president’s order would be a traditional deference to executive authority or an expansion of that authority.
Jay Hakes is the author of A Declaration of Energy Independence.