The office of dictator was created in the early Roman Republic, when it granted a single person—a prominent and trusted citizen—immense power in times of emergency. The dictator effectively became the commander in chief of Rome’s forces, imposing martial law to address external or internal threats that imperiled the city. Despite the negative connotation of the word today, the dictator did not rule in perpetuity but rather was typically appointed for a six-month period. Lucius Quintus Cincinnatus, later an inspiration to George Washington, was endowed with this authority three times, did his duty, and returned to being a farmer afterward.
Yet well-intentioned legislative measures can become corrupted through time and the demands of political expediency. In 121 BCE, facing a populist uprising from Gaius Gracchus, the Roman Senate issued a Senatus consultum ultimum, or “final decree of the Senate,” effectively suspending due process procedures so that the tribune could be seized and executed without a trial. The decree also, rather conveniently, shielded the senators themselves from any responsibility for actions taken during the crisis. Less than 40 years later, Sulla would use the same legislative procedure to entrench himself as dictator for life, crushing his enemies and pushing through his own agenda. Julius Caesar would do the same following his civil war against Pompey the Great, marking the end of the Roman Republic and paving the way for rule by emperor.
A couple of millennia later, and half a world away, Donald Trump is taking steps in that direction.
There is no specific mention of emergency powers in the U.S. Constitution, but many scholars have argued that such powers are implied by the structure of the executive branch, and courts have generally been willing to acknowledge the legitimacy of the president to assume them, especially when granted prior authority by Congress. Abraham Lincoln assumed emergency powers when he briefly suspended habeas corpus during the Civil War, which the Constitution expressly permits. Woodrow Wilson was the first president to formally declare a national emergency, in his case to address our maritime shipping inadequacies as we were poised to enter World War I. FDR issued three national emergency proclamations—one to stop the bank run in his first days in office and two related to World War II.
In 1976, Congress passed the National Emergencies Act, giving presidents broad emergency powers. Initially, Congress included a check on this authority, including in the bill a provision that it could rein in an emergency declaration by the president through a vote. But the Supreme Court overturned that check in the 1983 case of INS v. Chadha, while leaving in place the president’s largely unrestrained emergency powers.
Presidents have taken advantage of this: Ronald Reagan used the NEA six times during his eight years in office, including to impose sanctions on apartheid South Africa. Bill Clinton used it a whopping 18 times to do things like stop Iran from enriching uranium and thwart Middle Eastern terrorism. George W. Bush declared an emergency 14 times, in every instance against specific foreign entities related to terrorism or antidemocratic efforts in nations like Afghanistan, Iraq, and Lebanon. Barack Obama acted similarly, and so did Trump, predominantly, in his first administration, with the exception of his use of it to bypass Congress in the construction of a Southern border wall. Joe Biden was accused of taking emergency powers too far, as well, when he tried to apply them to his plan for student loan debt relief in the wake of Covid, but beyond that he used this congressionally granted authority in typical ways: to address actual and identifiable threats.
Since retaking office, Trump has declared eight national emergencies in just a few short months. He’s used the NEA to militarize the Southern border against “invasion” and to enact tariffs against the entire world. He declared a national energy emergency, even though no such emergency exists, so that he can push through more fossil fuel permits.
All of these “emergencies” under the NEA come in addition to Trump’s invocation of the arcane 1798 Alien Enemies Act, which the administration has used to violate the due process rights of undocumented immigrants and sentence them to a lifetime of detention in El Salvador. Elon Musk’s DOGE farce claimed the necessity to act with similar impulsiveness and disregard for workers’ rights in its chain-saw approach to cutting government: We need to move fast and break things because, Musk has asserted, the “waste” is extraordinary and the threat imminent.
Trump will likely go considerably further. He’s bandied about the idea of using the 1807 Insurrection Act to use American troops to deal with a “rebellion” within the United States. For now, that idea was rejected based on the recommendations of Secretary of Homeland Security Kristi Noem and Defense Secretary Pete Hegseth, but Trump could return to it should protests continue to spread throughout the country or if he feels his draconian anti-immigration policies are being undermined.
And recently, Trump’s top henchman Stephen Miller has mused about suspending habeas corpus for undocumented immigrants, depriving them of any due process rights whatsoever. “The Constitution is clear, and that, of course, is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended at a time of invasion,” said Miller, a senior White House adviser. “So I would say that’s an action we’re actively looking at.” Miller further posited that it would be a decision left solely up to the administration, which “radical rogue judges” would not be able to overrule. Essentially, the administration would act as prosecutor, judge, and executioner.
What would stop such an abolition of basic freedoms from extending to U.S. citizens? If Trump (or Miller by proxy) decide that certain U.S. citizens are hampering their “national security” efforts, they could potentially justify suspending habeas corpus for them as well. It would be a big step if they tried it now, but they seem to be inching in that direction—and would be enabled by the Supreme Court ruling in Chadha and a Congress controlled by a feeble, impotent Republican Party.
Despite slow-walking Trump’s insurrection trial and granting extraordinary powers and independence to the president in Trump v. United States, even Chief Justice John Roberts appears to be starting to recognize the dangers of granting unlimited power to the White House. On Monday, he told a group of Georgetown Law students that the rule of law is “endangered,” evidently not perceiving his own role in its decimation. He expressed fear that judges doing their duty would be maligned and perhaps impeached. It’s hard to figure that Roberts isn’t directly reacting to Miller’s philosophy on executive power as it relates to the courts.
In the aftermath of the 2008 global financial crash, Obama chief of staff and future Chicago Mayor Rahm Emanuel famously said, “Never let a crisis go to waste.” Some have called this “Rahm’s rule”: the recognition that every crisis brings opportunities to do things that might otherwise have been difficult or impossible. Trump and Miller have exploited and expanded this notion, developing their own rule of governance—what may be called the “Trump doctrine.” The strategy is so simple as to be barbaric, as crude in its methods as it is cruel in its execution: Create a continual state of crisis and turmoil, allowing the president to assume expansive emergency powers—a backdoor method of achieving a unitary executive and possibly going much further.
Crises lend themselves to authoritarian rule, and often in the aftermath it’s extraordinarily difficult to return to republican government. Trump has created a permanent crisis state. Yet the real crisis began when tens of millions of Americans made the mistake of putting a fascist back in office after his first attempt to overthrow the government.
The post How Trump’s “Emergency” Powers Could Become Permanent appeared first on New Republic.
