Donald Trump has figured out the cheat code for authoritarianism: Fake emergencies bring real power. 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.
Emergency powers exist for good reason. In democratic societies, the general rule is that the legislative branch defines what the executive branch should do, and then the executive acts on the direction of the legislature.
The problem with that model is that legislative activity is remarkably slow, even at the most urgent of times. By way of example, the USA Patriot Act, which was passed in response to the 9/11 attacks, was not adopted until six weeks after the World Trade Center towers fell (and even at that rate, many, in retrospect, think that the legislation was rushed and, as a result, ill-considered).
Recognizing this systematic inadequacy, Congress has, at least since the Cold War, developed something of a solution. It declares general restrictions, such as requiring FDA approval for public use of a drug, but couples those provisions with language authorizing the executive to act in violation of those limitations in times of national crisis—by, for example, allowing the use of an unapproved drug to address a pandemic crisis. A study by the Brennan Center identified 137 statutory provisions in which these sorts of emergency authorities can be invoked by the president.
Until Trump, this approach more or less worked. Presidents had certain amplified powers when needed, and those instances were limited in frequency, nature, and duration. Three factors undergirded this careful balance.
First, and most obvious, the people elected as president met some baseline for character and used their power with good intent. (Some readers may find this assertion risible, but any fair assessment upholds it.) As David Brooks put it: “When we caused harm—Vietnam, Iraq—it was because of our overconfidence and naivete, not evil intentions.”
Second, Congress could—and did—contain executive authority. It did so at the front end by placing clear textual limits on when and how emergency authorities could be invoked. And it did so on the back end by conducting vigorous oversight of presidential invocations of emergency authority. For example, when President Harry Truman attempted to nationalize the steel industry, he did so in violation of the Defense Production Act, in which Congress had given the president only a very narrow and deliberately cumbersome authority to seize private property.
The Truman steel-seizure case likewise demonstrates the third restraint on presidential emergency overreach—the possible intervention of the courts. When the steel companies sued, the Supreme Court was called upon to resolve the matter, and by a 6–3 vote, it concluded that Truman had acted in excess of his statutory and constitutional authority.
Taken together, these three limits on presidential excess have, for nearly a century, been more or less up to the task of constraining emergency declarations. When, for example, President Joe Biden asserted that student-loan forgiveness was tied to the coronavirus pandemic, a majority of the Court disagreed.
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.
Consider Trump’s invocation of emergency powers to temporarily take control of D.C.’s Metropolitan Police Department. The Home Rule Act, which allows the residents of D.C. to govern themselves, has a narrow provision that allows the president to require the mayor to provide him with MPD’s services when he “determines that special conditions of an emergency nature exist.” In mid-August, Trump declared a crime emergency in D.C. He baldly asserted that “crime is out of control” in the District—a claim that has never been tested in court.
Any fair analysis would turn up problems. The District does have a higher than average crime rate, but if there’s an emergency, it lies elsewhere in America. In the six months leading up to Trump’s emergency declaration, violent crime in the District had dropped by 25 percent. Memphis and St. Louis have had higher murder rates than the District in recent years. Yet those cities have not seen a surge of law enforcement. And so, one might reasonably wonder what happened to justify Trump’s invocation of “special conditions” for the District. We may never know, as no court appears poised to ask that question.
Likewise, Trump has characterized the nation’s ongoing problems with illegal immigration as an “invasion” from Latin America, justifying extraordinary presidential authority. In deploying military troops to Los Angeles, for example, Trump cited a federal statute that applies only in cases of rebellion or invasion, or when the president is unable “to execute the laws of the United States” without military assistance. Trump relied on the last of those provisions to send in the National Guard. Although a district court ruled that the emergency was a legal fiction, the decision was overturned by the Ninth Circuit Court of Appeals, which held that when a president makes a factual determination of this sort, the courts should defer to his authority.
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.
All of these emergencies are just an excuse to gain power. There is no “crime emergency” in D.C. There has been no “invasion” on our southern border by immigrants or criminal gangs. And there is no “extraordinary” threat arising from the trade deficit. All that exists to support those declarations is the unilateral, fevered imagination of Trump, unchecked by Congress or the courts.
The only truly “extraordinary” danger here arises from the supine response to Trump’s actions. Beyond the damage already done, the lack of any guardrails now gives Trump the apparent authority to, for example, impose a 50 percent tariff on Brazil because it is prosecuting his friend Jair Bolsonaro.
And the list of threats will only grow. Recall that more than 130 such extraordinary emergency authorizations are already law. What happens, for example, if Trump invokes the Federal Communications Act to take over the airwaves (or the internet) because of a “state of public peril”? Or, worse yet, what if Trump purports to suspend the writ of habeas corpus because “public safety may require it”?
Eventually, the courts may intervene. In the first AEA case that came before the Supreme Court, the Court did say that judges can evaluate “questions of interpretation and constitutionality” of the act, which seems to suggest a substantive role of review. But that hint of possible review is a thin reed on which to rest democracy. The structure of law granting exceptional emergency powers was wise, once upon a time. Today, it is a grave threat to democracy and an avenue toward authoritarian rule.
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