‘Perpetual crisis mode': how Trump uses emergency declarations to push radical agenda

The Guardian

3 hours ago

Donald Trump's drives to pursue his radical policies on immigration, tariffs and energy may seem at first to have little in common beyond a shared Maga political agenda.
But Trump has made spurious or thinly documented claims of 'national emergencies' to justify harsh illegal immigrant measures, sweeping tariffs and massive energy deregulation, say legal scholars, watchdog groups and Democrats.
Some fear that governing by claims of 'national emergency' has become normalised under Trump, posing a threat to US civic society and political norms as he governs in a permanent crisis mode and authoritarian style.
'In any emergency-power regime, it's crucial that the 'emergency' trigger be carefully defined and cautiously applied, lest the state of emergency become the new normal. Yet that seems to be exactly what Trump wants – to govern in perpetual crisis mode.' said David Pozen, a Columbia University law professor.
In declaring separate emergencies the Trump administration has relied on controversial or seldom-used statutes that critics say have been distorted and stretched to justify and implement his Maga policies, spurring legal challenges and some strong rebuffs in the courts.
In response to Trump's dubious emergency declarations, lawsuits have been filed by liberal and conservative watchdog groups, Democratic state attorneys general and others. Some have led to temporary stays and angered the US president, his top officials and their close political allies.
Pozen added: 'The US has a web of statutes that trigger specific emergency authorities in specific circumstances. Trump has been remarkably reckless in invoking these statutes, almost to the point of claiming a general emergency power of the sort that simply does not exist in our constitutional system.'
What's more, Trump's embrace of emergency powers has allowed him to move aggressively in an authoritarian style with few checks except for court rulings that have slowed some of Trump's actions and created ongoing legal dustups some of which could reach the supreme court, say legal experts.
Although Trump has long hyped crises and pushed conspiracies to advance his policies, his use of emergency powers to push a Maga agenda of high tariffs, enforce draconian, anti-immigrant policies in Los Angeles to combat protests and gut clean energy rules, seems to have reached new levels, say legal experts.
'Emergency authorities are not tools for presidents to enact their policy agendas,' said Liza Goitein, the senior director of the Brennan Center's liberty and national security program. 'They are intended for sudden, unexpected crises that can't be handled through the normal operations of government. Trump abused emergency powers to impose worldwide tariffs and to reorient US energy production toward fossil fuels, bypassing Congress. There was no emergency in either case.
'And he's abusing military deployment authorities now to suppress protests against his immigration policies, authorizing the deployment of federal forces anywhere in the country where protests against Ice may occur regardless of whether they involve violence or law-breaking.'
Goitein stressed: 'That's an abuse of emergency power that threatens the most fundamental right people have in a democracy: the right to peacefully express dissent and disagreement with their government's actions.'
Little wonder that Trump's penchant to invoke dubious crises to justify exercising emergency powers has faced legal blowback: several courts, for instance, have rejected Trump's claims of a migrant invasion and using an emergency statute as justification to deal with it.
Trump in March invoked the Alien Enemies Act of 1798, which gives the president power to deport citizens of nations involved in an invasion, war or 'predatory incursion', by contending that an invasion of the US was under way by the violent Venezuelan gang, Tren de Aragua.
Previously, that act had only been used three times before, during the first and second world wars, and in the War of 1812. But Trump's use of the act has been rejected by multiple judges who didn't buy the notion that the activities of the gang merited the law's use.
Just last month the New York federal judge Alvin Hellerstein ruled that there was nothing in the 1798 law that 'justifies a finding that refugees migrating from Venezuela, or TdA gangsters who infiltrate the migrants, are engaged in an 'invasion' or 'predatory incursion''.
Such court rulings temporarily blocking Trump's moves to deport people without due process or unilaterally impose widespread tariffs by declaring his actions as probably illegal, have infuriated Trump and provoked verbal attacks on judges by Trump and his top aides.
Trump in late May, for instance, raged at judges who have temporarily blocked the administration from moving fast to carry out deportations with an all-caps attack against 'USA hating judges who suffer from an ideology that is sick'.
On a related track, Trump's provocative order to federalize thousands of state national guard troops and deploy marines to cope with largely peaceful protests in Los Angeles sparked a lawsuit from California challenging Trump's action that US district judge Charles Breyer in mid-June backed.
Using strong language, Breyer ruled that Trump was setting a 'dangerous precedent for future domestic military activity' by unlawfully federalizing the national guard without the governor's permission; but a three-judge appeals court, two of whom were Trump appointees from his first term, ruled on June 19th that Trump's order federalizing the guard can remain in place giving the White House a temporary win that California appealed on the 20th.
Legal experts warn Trump's sweeping declarations of emergencies are dangerous moves to expand his powers in authoritarian ways and unjustified.
Ilya Somin, a George Mason law professor, argued in Lawfare last month that Trump has ratcheted up bogus claims of emergencies that undercut the constitution and Congress to implement his agenda.
'The Trump administration has exhibited a dangerous pattern of invoking spurious emergencies to undermine the constitution, threatening liberty and circumventing Congress. This is most evident in the fields of immigration and trade policy.
'If not stopped, or at least curtailed, these policies could harm millions of people, imperil civil liberties and compromise our constitutional system. Abuse of emergency powers is far from unique to the current administration. But Trump has taken this tendency to new heights.'
Somin has been involved in one lawsuit filed by the Liberty Justice Center on behalf of several small businesses at the US Court of International Trade.
Other legal scholars warn that Trump's reliance on specious emergency power arguments and actions pose threats to the rule of law.
'My view is that all these emergency actions taken together are autocratic steps … Trump's instincts are autocratic,' said Frank Bowman, a University of Missouri law professor emeritus.
Bowman said that in general giving a president emergency powers is premised on their acting in good faith and being rational, neither of which apply to Trump.
'Courts are not dealing with a rational executive, but a would-be autocrat,' he said.
Bowman stressed courts must closely examine the factual bases for Trump's invoking dubious emergency orders and powers to see if the arguments justify his actions.
To implement his tariff regime, for instance, Trump claimed in April that 'foreign trade and economic practices have created a national emergency.' Trump's sweeping assertion was rejected by two courts, but an appeals court has temporarily halted the more expansive ruling.
Once again, Trump officials responded to their legal setbacks with angry attacks on judges, as they did late in May when the Court of International Trade ruled against them.
The White House deputy chief of staff, Stephen Miller, blasted the ruling on social media as a 'judicial coup'. A day later Miller added that 'we are living under a judicial tyranny,' even though two of the three judges were appointed by Republicans, including one who Trump tapped for the court.
On another legal front, 15 Democratic attorneys general last month sued Trump to halt his national 'energy emergency' declaration from his first day back in office, which the states argued was an unlawful attempt to speed permitting for oil and gas projects and ignore regulations.
The state attorneys general said that the use of emergency powers to override normal permitting rules for hundreds of projects would cause enormous damages to historic and natural resources and undermine drinking water standards.
'Many environmental laws allow for emergency exemptions when there are genuine emergencies,' said Michael Gerrard, who heads the Sabin Center for Climate Change Law at Columbia University.
'But their wholesale use for a manufactured emergency is contrary to law.
The US has no energy emergency. We are producing more oil and gas than any other country in the world.
'Declaring a fake emergency is another way that the Trump administration is trying to bypass established laws and procedures to advance its various agendas. One of those agendas is to maximize both the supply of and the demand for fossil fuels.'
Critics say Trump's drive this year to declare national emergencies with tenuous or phony legal bases pose clear dangers to democracy.
'Trump keeps citing statutes to give himself emergency powers where they don't extend nearly so far or where the facts don't remotely justify an emergency,' Jamie Raskin, a Democratic representative for Maryland, told the Guardian.
'When he wants something, Trump doesn't care if he's violating the constitution or federal law. It's like kicking a chair out of the way.'
Likewise, as Trump has ramped up claims of national emergencies, he has effectively bypassed the Republican-controlled Congress and eroded their authority with executive power grabs.
Pozen sees Congress complicit in Trump's emergency moves which ironically undercut congressional powers.
'Even though Republicans control the House and the Senate, there has been no attempt to seek legislative authorization for Trump's most aggressive measures on the economy, energy, immigration and most everything else. It evinces enormous contempt for Congress.'
From a historical perspective, Raskin sees Trump's reliance on using emergency powers as a page from the classic authoritarian playbook.
'Authoritarians thrive on emergencies. They love to create emergencies in order to invoke and exercise extraordinary authoritarian powers. This was the advice of fascist philosopher Carl Schmitt for dictators – declare an emergency to have the exception swallow the rule and never go back to the norm,' he said.