America in the midst of two major 'national emergencies'

Terror threat plus H1N1 flu emergency could test Constitutional protections.

Damian Dovarganes/AP
A Los Angeles Fire Department official is administered the H1N1 vaccine at a public health clinic in Encino, Calif. on Friday.

Just over a month after extending the 9/11 national emergency for another year, President Obama announced another federal emergency on Saturday over the worsening H1N1, or swine flu situation.

The president’s proclamation – “The 2009 H1N1 influenza pandemic in the United States constitutes a national emergency,” it reads – allows the government to give healthcare providers legal waivers as a means to better handle any flood of new patients.

The White House said the dramatic language isn’t based on any new findings, but is intended simply to allow greater flexibility for healthcare providers.

But news about H1N1 has steadily worsened in recent days as the flu, which authorities say threatens mostly children, young people, and pregnant women, is now widespread in 46 states and has caused 411 confirmed deaths and more than 8,000 hospitalizations, according to the Centers for Disease Control and Prevention in Atlanta. Delays in distribution of the new H1N1 vaccine is also worrying many Americans.

"The H1N1 is moving rapidly, as expected. By the time regions or healthcare systems recognize they are becoming overburdened, they need to implement disaster plans quickly," White House spokesman Reid Cherlina explained to the Washington Post.

The US has been under near constant national emergency since the Korean War. Presidential emergency declarations go back to the founding of the Republic and have included the Whiskey Rebellion and the Great Depression. The political philosopher John Locke believed that not just war and natural disasters but simply the “common good” could be a good enough reason to impose an emergency.

Indeed, most declared emergencies have less to do with real threats to Americans and more to do, for example, with trade or, as in one current emergency, an import ban on rough diamonds from Sierra Leone.

Emergency powers under President Bush's declaration shortly after 9/11 have been credited with successfully interdicting terrorist cells. But civil libertarians argue that the Bush administration crossed constitutional lines with some of its interrogation and communications interdiction initiatives.

Presidents are technically not allowed to waive any right but habeas corpus during an emergency. But their legal powers extend farther than that, and these have largely gone unchecked by Congress or the courts.

“When the president formally declares a national emergency, he may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel and, in a variety of ways, control the lives of United States citizens,” writes Harold Relyea, a specialist in national government with the Congressional Research Service, an arm of the Library of Congress.

The reform-minded National Emergencies Act of 1976 intended to formalize executive branch emergency powers and force declarations to automatically lapse after a year. But the standard operating procedure has been for presidents to simply renew ongoing emergencies year after year.

Mr. Obama’s swine flu declaration is the 33rd national emergency declaration since 1976.


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