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Today, the structure of law granting exceptional emergency powers is a grave threat to democracy and an avenue toward authoritarian rule.
The president has invoked emergency authority in three distinct contexts—declaring a public-safety emergency to defend his takeover of the District of Columbia; claiming an “invasion” to justify an immigration crackdown, including sending the National Guard to Los Angeles; and invoking “extraordinary” factors to support his tariff war. Although Trump is not the first president to grab greater powers behind the cloak of emergency authority, he is the first to have done so in such an extreme way. Worse yet, the lack of resistance from Congress or the courts suggests that there is little, if anything, to prevent Trump from expanding his use of “emergency” authority even further as he accumulates power.
Today, however, those guardrails are failing. To begin with, it is now clear that a second-term Trump (unlike even Trump in his first term) has absolutely no internal or external regulator—no inner voice whispering, Perhaps I shouldn’t do that, and no adviser suggesting restraint. Time and again, Trump has invoked emergency presidential authority to achieve the objective of aggrandizing his power. Worse yet, his objectives seem at least as much focused on personal enrichment (his family wealth is estimated to have increased by more than $1 billion since his 2024 election) as the benefit to the country.
Congress, meanwhile, far from checking Trump, has become his biggest cheerleader. And, with a couple of exceptions, judicial review of Trump’s actions has not assessed the substance of his various assertions that an emergency exists, and instead has modeled deference, taking him at his word.
Trump also played the “invasion” card in his decision to invoke the Alien Enemies Act and deport, without due process, Venezuelans who are alleged members of the Tren de Aragua gang. Many courts have, thankfully, reviewed the merits of this claim and rejected it (if only because Tren de Aragua is not a foreign nation, and thus cannot invade America). But at least one judge has bought the argument on the merits, and another has said that an AEA declaration of “invasion” is a political question whose merits courts cannot evaluate.
By contrast, there is one area in which the courts appear more willing to scrutinize an “emergency” declaration and test the substance of Trump’s claims: the question of tariffs. Trump declared trade deficits, many of which have existed for decades, an “emergency” that justified his invocation of authority to address an “unusual and extraordinary” threat from abroad. The Court of International Trade rejected this declaration unanimously. But even that victory is incomplete; the Federal Circuit affirmed the court’s decision last week, but further appeal to the Supreme Court lies ahead.
www.theatlantic.com
The president has invoked emergency authority in three distinct contexts—declaring a public-safety emergency to defend his takeover of the District of Columbia; claiming an “invasion” to justify an immigration crackdown, including sending the National Guard to Los Angeles; and invoking “extraordinary” factors to support his tariff war. Although Trump is not the first president to grab greater powers behind the cloak of emergency authority, he is the first to have done so in such an extreme way. Worse yet, the lack of resistance from Congress or the courts suggests that there is little, if anything, to prevent Trump from expanding his use of “emergency” authority even further as he accumulates power.
Today, however, those guardrails are failing. To begin with, it is now clear that a second-term Trump (unlike even Trump in his first term) has absolutely no internal or external regulator—no inner voice whispering, Perhaps I shouldn’t do that, and no adviser suggesting restraint. Time and again, Trump has invoked emergency presidential authority to achieve the objective of aggrandizing his power. Worse yet, his objectives seem at least as much focused on personal enrichment (his family wealth is estimated to have increased by more than $1 billion since his 2024 election) as the benefit to the country.
Congress, meanwhile, far from checking Trump, has become his biggest cheerleader. And, with a couple of exceptions, judicial review of Trump’s actions has not assessed the substance of his various assertions that an emergency exists, and instead has modeled deference, taking him at his word.
Trump also played the “invasion” card in his decision to invoke the Alien Enemies Act and deport, without due process, Venezuelans who are alleged members of the Tren de Aragua gang. Many courts have, thankfully, reviewed the merits of this claim and rejected it (if only because Tren de Aragua is not a foreign nation, and thus cannot invade America). But at least one judge has bought the argument on the merits, and another has said that an AEA declaration of “invasion” is a political question whose merits courts cannot evaluate.
By contrast, there is one area in which the courts appear more willing to scrutinize an “emergency” declaration and test the substance of Trump’s claims: the question of tariffs. Trump declared trade deficits, many of which have existed for decades, an “emergency” that justified his invocation of authority to address an “unusual and extraordinary” threat from abroad. The Court of International Trade rejected this declaration unanimously. But even that victory is incomplete; the Federal Circuit affirmed the court’s decision last week, but further appeal to the Supreme Court lies ahead.
Trump Is Inventing Fake Emergencies to Gain Real-World Power
Today, the structure of law granting exceptional emergency powers is a grave threat to democracy and an avenue toward authoritarian rule.
www.theatlantic.com
