When President Donald Trump announced his tariffs last week, he also declared a national emergency. According to the White House, the emergency in question is “the large and persistent trade deficit,” or the fact that the United States imports more goods than it exports.
If you’re confused about why that’s an emergency, you’re not alone. So are experts. But regardless of whether the trade deficit is an actual crisis (it isn’t), the reason Trump declared an emergency is straightforward: He wanted to invoke his emergency powers — specifically those granted to him under the International Emergency Economic Powers Act — to quickly implement his new trade policy. (Had Trump not declared an emergency, he could still have implemented tariffs, but he would have had to follow certain procedures first.)
There is no legal definition of an emergency. Anything can be an emergency, so long as the president deems it to be one. And while some crises — like, say, a pandemic — warrant an emergency declaration, presidents often invoke their emergency powers over events that hardly merit that level of urgency.
That might be why it sometimes feels like America is in a perpetual state of crisis. Since taking office, Trump has declared emergencies over immigration, drug trafficking, and trade. He even declared a national emergency over the International Criminal Court’s decision to issue arrest warrants for Israeli Prime Minister Benjamin Netanyahu.
But while Trump has made use of his emergency powers in somewhat unorthodox ways, the use of those expansive powers is not unique to his presidency. “You have this dynamic of presidents increasingly relying on emergency powers to do things that are not directly related to any actual emergency in the traditional understanding of that term,” said Elena Chachko, an assistant professor at Berkeley Law School.
There are many problems with presidents’ tendency to turn to emergency powers to ram policy through. It allows presidents to circumvent Congress, abdicating legislators of their responsibility to pass laws that respond to current events. And more importantly, it props up a system that is ripe for abuse.
Emergency powers, explained
In 1976, Congress passed the National Emergencies Act to formalize the use of emergency powers. And in 1977, it passed the International Emergency Economic Powers Act, which allows presidents to follow through on economic policies like imposing sanctions without having to wait for congressional approval. These laws allow presidents to unilaterally declare an emergency as they see fit, but requires them to articulate which powers they plan to use and to issue periodic reports to Congress.
The post-9/11 period is certainly not the first time that presidents have claimed to have inherent constitutional powers only to subsequently abuse them. President Franklin D. Roosevelt made that claim, for example, to justify the internment of Japanese Americans during World War II. “But I think this trend sharply accelerated after 9/11,” Goitein added.
Declaring a national emergency gives the president access to at least 130 powers, according to the Brennan Center for Justice. Some of these powers, like waiving minimum comment periods for proposed regulations, can be reasonable when there’s a real emergency. Other powers are extremely threatening. Presidents can shut down or take control of communications like radio stations, they can seize American citizens’ assets without any due process, and can deploy the military within US borders. One power, as Elizabeth Goitein, senior director of the Brennan Center’s Liberty and National Security Program, pointed out, gives the president the ability to lift the ban on testing chemical weapons on humans.
Emergencies typically expire after a year, but presidents can renew them as many times as they want to. In practice, some declarations stick around for decades. The national emergency that President George W. Bush declared after the Sept. 11, 2001, attacks, for example, is still in place. In 2017, for another example, Trump used this emergency declaration to address a shortage in Air Force pilots by allowing the Air Force to recall retired pilots for active duty.
In fact, since 9/11, the use of emergency powers have only gotten more alarming.
“In addition to the statutory powers available in a national emergency, modern presidents have increasingly claimed to have inherent constitutional powers in emergencies,” Goitein told me. Unlike statutory powers, which are created through legislation, constitutional powers are derived from the constitution, and presidents have been more and more liberal with their interpretations of what powers are simply inherent to the office they hold.
So they don’t have to point to a specific statute to say they have the authority to act; instead, they claim that some of their authority during emergencies is fundamental presidential power. “For example, we saw the administration of George W. Bush taking the position in secret memos that the president has inherent powers that allow him to violate laws against warrantless wiretapping, and that he has inherent powers that allow him to violate laws against torture,” Goitein said.
Why presidents rely on emergency governance — and why that’s a problem
Congress has gotten less and less productive over the years. In the previous congressional session, lawmakers passed the fewest laws in decades. With a legislature that is less responsive to the world around it, presidents have even greater incentive to act on their own. And emergency powers give them an avenue to do just that. One example is former President Joe Biden using emergency powers to cancel student loan debt, a politically polarizing issue that Congress was unwilling to address.
But the primary reason that presidents overly rely on declaring emergencies is simple: The system is designed to make emergency governance hard to resist. There are few checks on the president’s emergency powers. (Technically, Congress can end an emergency with a veto-proof majority vote.) Plus, declaring a national emergency gives the president a pretense to, in many cases, find a way around political deadlock or other potential roadblocks, as was the case with canceling student debt.
Presidents can also use emergency declarations to whip up public support. After all, presidents often reiterate that their top priority is to keep people safe, and in a post-9/11 world, many Americans have been seemingly willing to give up certain civil liberties if they get safety and security in return. So by framing problems that hardly count as a crisis as an emergency, presidents hope to gain some political capital to implement their agenda. In his first term, for example, Trump declared an emergency to fund construction of the border wall.
When there is an emergency all the time, the limits on the president’s power become less and less potent. And presidents can seriously abuse their authority with little to no consequence, as was the case with Bush’s post-9/11 torture program.
All of this is why there have been repeated calls on Congress to reform emergency powers to add more oversight and potential recourse in the face of a president with little respect for rules and norms. But barring any change, presidents will continue to take advantage of these powers until Congress reckons with the reality that, oftentimes, the emergency the nation is facing is not trade or immigration or whatever else the president might say is a crisis. It’s the emergency declarations themselves.
