The 911 presidency: Trump flexes emergency powers in his second term

Boston Globe

10 hours ago

An analysis by The Associated Press shows that 30 of Trump's 150 executive orders have cited some kind of emergency power or authority, a rate that far outpaces his recent predecessors.
The result is a redefinition of how presidents can wield power. Instead of responding to an unforeseen crisis, Trump is using emergency powers to supplant Congress' authority and advance his agenda.
'What's notable about Trump is the enormous scale and extent, which is greater than under any modern president,' said Ilya Somin, who is representing five U.S. businesses who sued the administration, claiming they were harmed by Trump's so-called 'Liberation Day' tariffs.
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Because Congress has the power to set trade policy under the Constitution, the businesses convinced a federal trade court that Trump overstepped his authority by claiming an economic emergency to impose the tariffs. An appeals court has paused that ruling while the judges review it.
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Growing concerns over actions
The legal battle is a reminder of the potential risks of Trump's strategy. Judges traditionally have given presidents wide latitude to exercise emergency powers that were created by Congress. However, there's growing concern that Trump is pressing the limits when the U.S. is not facing the kinds of threats such actions are meant to address.
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'The temptation is clear,' said Elizabeth Goitein, senior director of the Brennan Center's Liberty and National Security Program and an expert in emergency powers. 'What's remarkable is how little abuse there was before, but we're in a different era now.'
Rep. Don Bacon, R-Neb., who has drafted legislation that would allow Congress to reassert tariff authority, said he believed the courts would ultimately rule against Trump in his efforts to single-handedly shape trade policy.
'It's the Constitution. James Madison wrote it that way, and it was very explicit,' Bacon said of Congress' power over trade. 'And I get the emergency powers, but I think it's being abused. When you're trying to do tariff policy for 80 countries, that's policy, not emergency action.'
The White House pushed back on such concerns, saying Trump is justified in aggressively using his authority.
'President Trump is rightfully enlisting his emergency powers to quickly rectify four years of failure and fix the many catastrophes he inherited from Joe Biden — wide open borders, wars in Ukraine and Gaza, radical climate regulations, historic inflation, and economic and national security threats posed by trade deficits," White House press secretary Karoline Leavitt said.
Trump frequently sites 1977 law to justify actions
Of all the emergency powers, Trump has most frequently cited the International Emergency Economic Powers Act, or IEEPA, to justify slapping tariffs on imports.
The law, enacted in 1977, was intended to limit some of the expansive authority that had been granted to the presidency decades earlier. It is only supposed to be used when the country faces 'an unusual and extraordinary threat' from abroad 'to the national security, foreign policy, or economy of the United States.'
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In analyzing executive orders issued since 2001, the AP found that Trump has invoked the law 21 times in presidential orders and memoranda. President George W. Bush, grappling with the aftermath of the most devastating terror attack on U.S. soil, invoked the law just 14 times in his first term. Likewise, Barack Obama invoked the act only 21 times during his first term, when the U.S. economy faced the worst economic collapse since the Great Depression.
The Trump administration has also deployed an 18th century law, the Alien Enemies Act, to justify deporting Venezuelan migrants to other countries, including El Salvador. Trump's decision to invoke the law relies on allegations that the Venezuelan government coordinates with the Tren de Aragua gang, but intelligence officials did not reach that conclusion.
Congress has ceded its power to the presidency
Congress has granted emergency powers to the presidency over the years, acknowledging that the executive branch can act more swiftly than lawmakers if there is a crisis. There are 150 legal powers — including waiving a wide variety of actions that Congress has broadly prohibited — that can only be accessed after declaring an emergency. In an emergency, for example, an administration can suspend environmental regulations, approve new drugs or therapeutics, take over the transportation system, or even override bans on testing biological or chemical weapons on human subjects, according to a list compiled by the Brennan Center for Justice.
Democrats and Republicans have pushed the boundaries over the years. For example, in an attempt to cancel federal student loan debt, Joe Biden used a post-Sept. 11 law that empowered education secretaries to reduce or eliminate such obligations during a national emergency. The U.S. Supreme Court eventually rejected his effort, forcing Biden to find different avenues to chip away at his goals.
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Before that, Bush pursued warrantless domestic wiretapping and Franklin D. Roosevelt ordered the detention of Japanese-Americans on the West Coast in camps for the duration of World War II.
Trump, in his first term, sparked a major fight with Capitol Hill when he issued a national emergency to compel construction of a border wall. Though Congress voted to nullify his emergency declaration, lawmakers could not muster up enough Republican support to overcome Trump's eventual veto.
'Presidents are using these emergency powers not to respond quickly to unanticipated challenges,' said John Yoo, who as a Justice Department official under George W. Bush helped expand the use of presidential authorities. 'Presidents are using it to step into a political gap because Congress chooses not to act.'
Trump, Yoo said, 'has just elevated it to another level.'
Trump's allies support his moves
Conservative legal allies of the president also said Trump's actions are justified, and Vice President JD Vance predicted the administration would prevail in the court fight over tariff policy.
'We believe — and we're right — that we are in an emergency,' Vance said last week in an interview with Newsmax.
'You have seen foreign governments, sometimes our adversaries, threaten the American people with the loss of critical supplies,' Vance said. 'I'm not talking about toys, plastic toys. I'm talking about pharmaceutical ingredients. I'm talking about the critical pieces of the manufacturing supply chain.'
Vance continued, 'These governments are threatening to cut us off from that stuff, that is by definition, a national emergency.'
Republican and Democratic lawmakers have tried to rein in a president's emergency powers. Two years ago, a bipartisan group of lawmakers in the House and Senate introduced legislation that would have ended a presidentially-declared emergency after 30 days unless Congress votes to keep it in place. It failed to advance.
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Similar legislation hasn't been introduced since Trump's return to office. Right now, it effectively works in the reverse, with Congress required to vote to end an emergency.
'He has proved to be so lawless and reckless in so many ways. Congress has a responsibility to make sure there's oversight and safeguards,' said Sen. Richard Blumenthal, D-Conn., who cosponsored an emergency powers reform bill in the previous session of Congress. He argued that, historically, leaders relying on emergency declarations has been a 'path toward autocracy and suppression.'