Have you noticed how many emergencies Trump has declared in the last three months? He declared a national emergency because of trade imbalances to justify a massive increase in tariffs. He declared an emergency because of the flow of fentanyl across our borders to justify tariffs on Mexico, China and Canada. He declared a national emergency at the border to justify a larger role for the military at the border. Other declared emergencies are in energy production (to get around environmental and wildlife protections on federal land) and in lumber production (to get around environmental protections in our national forests). It seems that a week doesn’t go by without a new emergency declaration. Who knew we were facing so many emergencies!
All of these “emergencies” have two things in common—they all involve chronic problems facing our country (and thus are hardly “emergencies” as that term is generally used in the English language), and they take advantage of extraordinary power that Congress has given by a variety of statutes to the President in national emergencies. To be far, while Trump has supercharged the use of emergency powers, all Presidents have asserted emergency power as well. President Biden, for example, tried to use emergency powers to justify student loan forgiveness.
This post will explain the laws that govern Presidential emergency powers and suggest both legal arguments and legislative reform to combat the misuse of these powers.
Congress recognized that from time to time we will face national emergencies that will require swift action and extraordinary action, and gave the President heightened authority in national emergencies in over one hundred statutes that the Brennan Center has helpfully catalogued. The Brennan Center has also maintained a database of all of the declared national emergencies. Some of the authorities are scary. As the Brennan Center notes “Section 706(c) of the Communications Act of 1934 allows the president to shut down or take over radio stations. If she proclaims a threat of war, she can go further and take over wire communications facilities as well.”
All of these national emergency powers are subject to the National Emergencies Act of 1976. This statute is a post-Watergate statute that reflected Congress’ concern over the Presidential powers in national emergency—some by statute and others by Presidential fiat. The intent was to normalize and place checks and balances on the President’s national emergency authority. The Act authorizes the President to activate special powers (found in the over one hundred statutes) by declaring that there is a national emergency subject to certain limitations.
Sadly, the limitations in the Act have really amounted to no limits at all. First, the statute defines a national emergency simply as an “a general declaration of emergency made by the President.” This has meant that if there is a declaration by the President, there is an emergency. Courts have shown no inclination to question Presidential declarations.
Second, while the Act provided that Congress could terminate any declared national emergency by a resolution passed by both houses that did not require a Presidential signature to be effective—a legislative veto—the Supreme Court struck down legislative vetoes as unconstitutional in its 1983 decision in INS v. Chadha. The Act was then amended to provide that Congress can terminate a national emergency only if the President agrees. During the first Trump Administration, both the House and the Senate actually voted to terminate the national emergency used by Trump to reallocate Department of Defense funds to build a border wall, but Trump vetoed the legislation. As a result, Congress has only been successful in terminating a national emergency on one occasion—in 2023 Congress terminated the COVID emergency declaration only after President Biden agreed to the termination.
Third, while the Act provides that Presidents must renew national emergency declarations after one year, this has been not been an effective check on emergency power. Not surprisingly Presidents don’t want to give up enhanced power. As a result, national emergencies last a long time. Indeed, as the Brennan Center noted, 34 of the 62 states of emergency declared since the Act passed are still in effect and the average duration of an emergency is 9.6 years. One emergency has been in existence for 39 years, and 25 emergencies have lasted over a decade.
This is inconsistent with the very notion of an “emergency”, which suggests a sudden short term event.
The most significant—and commonly used— emergency power is the International Emergency Economic Powers Act (IEEPA), which is the basis of much of our sanctions on other countries. It allows the President to address unusual and extraordinary threats by declaring a national emergency, and authorizes the President to prohibit or regulate, among other things, "any transactions in foreign exchange" and "importation and exportation" of any property of a foreign national. This was the authority used by Trump for all of tariffs imposed to date, as well as the lumber emergency.
So what can be done to stop the misuse of emergency power? There are both potential judicial remedies and legislative fixes.
As noted above, the National Emergencies Act defines a national emergency as an emergency declared by the President. Despite the fact that Presidents routinely declare emergencies over matters that, using the normal English definition of an emergency, are really not emergencies, courts have shown no willingness to second guess Presidential declarations. Justice Jackson’s concurrence in Youngstown Sheet & Tube v. Sawyer has become the key opinion about the exercise of emergency powers and in that concurrence, Justice Jackson said presidential authority is at “high ebb” when Congress has authorized the assertion of power.
Since the Youngstown decision, courts have not second guessed assertions of emergency power authorized by Congress and I don’t expect this to change even with the extraordinary declarations by Trump (the most notorious, in my view, being the ridiculous declaration of a Fentanyl emergency at the Canadian border).
As I note in a prior post, however, the Supreme Court’s recent cases involving the “major issues” doctrine could be an effective way to check the exercise of emergency powers. In West Virginia v. EPA, the Supreme Court said that where there is something extraordinary about the “history and breadth of the authority” an agency asserts or the “economic and political significance” of that assertion, courts should “hesitate before concluding that Congress meant to confer such authority." In that case, the Court applied this principle to reject the EPA's claim for authority over an issue of "vast economic and political significance" where Congress has not clearly empowered the agency with power over the issue. During the Biden Administration, the Court used this doctrine to strike down several claims of authority--most notably in striking down the Biden Administration's plan to forgive student loans.
The student loan decision is especially notable because the Biden Administration asserted emergency powers in the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act), which provided that the Secretary of Education “may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency.” The Secretary, noting the Presidentially declared COVID-19 emergency, exercised the HEROES Act emergency authority to forgive student loan debt. The Court, applying the major issues doctrine, rejected this use of authority. Important to the Court’s decision was that the loan forgiveness was much more significant than previous waivers and modifications done using this authority
Accordingly, extraordinary use of national emergency authority that goes well beyond the historic use of this authority can be effectively challenged in the courts. I am guardedly optimistic that the Courts will indeed use this doctrine to strike down many of Trump’s extraordinary national emergency powers.
In addition, other constitutional protections could also come into play. I have no doubt, for example, that the courts would have First Amendment issues with shutting down or taking over radio stations. As always, the Constitution trumps statutory authority.
In the long term, however, Congress needs to return to the balance of power it intended in the National Emergencies Act before the Supreme Court held that legislative vetoes are unconstitutional. As we have seen in the last three months, the national emergency powers can be abused are are very dangerous unless subject to checks and balances. The Project on Government Oversight (POGO) has suggested several reforms including: limiting declared national emergencies to 30 days unless Congress affirmatively voted to extend it, then further limiting emergencies to one year unless Congress approves a renewal, not allowing the use of national emergency authority for expenditures Congress has rejected via its authorization or appropriations processes, and requiring more detailed justifications for Presidential declarations of emergency. In addition, there should be a review of the statutes granting emergency powers and a repeal of those authorities that either no longer make sense (such as emergency powers over the Panama Canal Zone that no longer exists) or have never been used (Brennan found that more than half of the emergency powers have never been used).
I am a realist. I doubt that the Republican majorities in Congress have the intestinal fortitude to limit Trump’s powers. I am hopeful, however, that one the current craziness ends—and Trump is out of power—there will be a bipartisan desire to place greater check on Presidential emergency power. (This might be a useful use of my President Ocasio-Cortez test).