President Donald Trump has made a habit of declaring emergencies.
Since he took office for his second term, Trump has issued declarations of emergency at the southern border. On energy and trade. About drug trafficking and cartels, and even the International Criminal Court. In all, he’s declared eight emergencies in his first 100 days, a rate that far outstrips any previous president, including his own first term.
It’s unclear whether all these things meet the legal standard for an “emergency” — a situation so unusual and extraordinary that it can’t wait for congressional action. The US trade deficit with China, for instance, has been the status quo for decades. But by declaring it an emergency, Trump unlocks special authorities that wouldn’t otherwise be available to him.
The question of whether Trump can use his emergency powers this way is currently making its way through the courts, and our colleague Ian Millhiser has been following along as proceedings kicked off in the Court of International Trade.
In the meantime, we at Today, Explained wanted to understand why Trump is so keen to tap these powers to achieve his agenda, so we called up Elizabeth Goitein. She’s a senior director at the Brennan Center for Justice and an expert on presidential emergency powers.
Goitein spoke with Today, Explained co-host Noel King about the history of national emergencies, what Trump can do with his powers, and whether Congress should do something about it. An excerpt of their conversation, edited for length and clarity, is below. There’s much more in the full podcast, so listen to Today, Explained wherever you get podcasts, including Apple Podcasts and Spotify.
I don’t think most Americans feel like we’re living in a time of eight distinct emergencies that we weren’t living in six months ago. Why does the president do this?
A national emergency declaration is an extraordinarily powerful thing. It unlocks enhanced powers that are contained in 150 different provisions of law, all of which say something like, “In a national emergency, the president can do X,” or, ”In a national emergency, the president doesn’t have to do Y.” These are powers that allow the president to take actions that go beyond what Congress has authorized in nonemergency situations. In some cases, they allow him to take actions that Congress has expressly prohibited in nonemergency situations.
This can be a very tempting tool in order to implement policy in situations where there’s not sufficient support from Congress or where Congress has actually prohibited that policy. You can see why the temptation is there for presidents to use these powers rather than go through the normal policy-making and law-making process.
President Trump sometimes behaves as if the emergency powers were granted by God, but actually what you’re saying is: They come from Congress. This is Congress saying, “We will allow you to have additional power in times of emergency.” When and why did Congress initially do this?
Congress has been providing these powers to the president since the founding.
Our current system, in which the president declares a national emergency, and that declaration unlocks powers that are included in other statutes, dates back to World War I. This system where Congress would talk about national emergencies and then the president started issuing declarations of national emergency evolved organically. In fact, the organic nature of it turned out to be a problem, because there was no overarching law that governed the process. There was no time limit on how long an emergency could stay in place. There was no reporting to Congress.
This is why Congress, in the 1970s, enacted the National Emergencies Act. It placed a time limit on how long an emergency declaration could stay in place without being renewed by the president. The NEA also, as originally enacted, gave Congress the power to terminate an emergency declaration using a legislative veto. That’s a law that goes into effect with a simple majority of both houses of Congress and without the president’s signature. That was a ready means for Congress to shut down an emergency declaration that was either inappropriate or was lasting too long.
But then in 1983, the Supreme Court held that legislative vetoes are unconstitutional. So today, if Congress wants to terminate an emergency declaration, it basically has to pass a law by a veto-proof supermajority, which is next to impossible in today’s political climate.
How far can the president go with emergency powers? What kinds of things could he do?
If you look at these 150 powers that are at the president’s disposal in a national emergency, a lot of them really do seem reasonable on their face. They seem measured, something that you would want and expect the president to have.
But others seem like the stuff of authoritarian regimes. There is a law that dates back to 1942 that allows the president to take over or shut down communications facilities. This was last invoked in World War II. Today, it could arguably be used to assert control over US-based internet traffic.
There’s another law, the International Emergency Economic Powers Act, that allows the president to freeze the assets of almost anyone, including a US person, if the president deems it necessary to address a foreign or partially foreign threat.
In fact, the president can also make it illegal for anyone to engage in any financial transactions with that person, including something as simple as renting them an apartment or giving them a job or even selling them groceries. So these are some really alarming authorities in terms of the potential for abuse.
You’ve laid out why granting some of these powers does make sense in times of emergency. Some of them, though, seem like a lot of power. Donald Trump is a highly unusual American president. Is it possible that Congress made a mistake in assuming that every American president would be like the guy who came before?
Yes. Congress made a mistake.
To be fair, Congress did give itself a ready means of terminating emergency declarations, and Congress did not foresee that the Supreme Court was going to take that off the table.
However, I think it was a mistake to leave the law in place as it was without that safeguard. I think it is time — past time — for a reckoning for Congress, to not only reform the process of national emergency declarations and the termination of those declarations, but also to look at some of these individual powers like the Communications Act, which allows the president to take over or shut down communications facilities, and the power over domestic transportation. Congress should put some limits and safeguards on those powers.
