When the president claims everything is a national emergency, so that he can do whatever he wants, the courts need to regard that as the real emergency.
Illegal border crossings are an emergency. Mexican cartels are an emergency. The failure to accelerate mining and drilling on federal lands is an emergency. Illegal drugs from Canada, China, and Mexico are an emergency (actually, only three).
The International Criminal Court is an emergency. The trade deficit is an emergency. The trial of former Brazilian President Jair Bolsonaro is an emergency. Crime in Washington, D.C., is an emergency. Crime in Chicago and Baltimore may soon become an emergency as well. President Donald Trump said Tuesday, “We’re going there. I haven’t specified when.”
Trump has declared nine national emergencies under the National Emergencies Act of 1976, or NEA, during his seven months in office. That’s 1.3 emergencies per month. If you include crime in Washington, D.C., which Trump declared an emergency under another law—the Home Rule Act of 1973—the number rises to 10. Currently. Treasury Secretary Scott Bessent told the Washington Examiner on Monday, “We could declare a national housing emergency in the fall.” That would be 11 emergencies. Add Chicago and Baltimore, and that’s 13, provided Trump doesn’t invent more emergencies to declare during that time.
During his first term, it took Trump four long years to declare 13 emergencies, some of which were real (including the COVID-19 pandemic). Once a president declares a national emergency, he or she has the power to use 137 different statutory powers, according to the nonprofit Brennan Center for Justice, which lists them here. Trump clearly wants them.
Trump’s excessive use of emergency powers constitutes an emergency in itself. The ideal solution would be to define what “emergency” means within the National Emergencies Act; the law doesn’t provide for one. Mark Medich, writing for The New Republic in 2022, pointed out that legislation to limit presidential emergency powers enjoyed bipartisan support at the time, and that Trump’s first term had demonstrated its dire need. Medich warned that now was the time to fix the situation while the sun was shining. But Congress did nothing, and now it’s pouring with rain, and we have leak detectors everywhere.
Trump’s fake emergencies aren’t limited to official declarations. “You could say Trump has declared 10 emergencies, or many more,” Elizabeth Goitein of the Brennan Center told me.
For example, the invasion appears to be an emergency, and Trump claims that his presence along the southern border, as Goitein points out, falls under the “Enemies Aliens” Act of 1798, allowing him to deport illegal immigrants without due process. In April, the Supreme Court ruled to this effect.
The phrase “national security” also connotes an emergency. In an executive order issued in March and again last Thursday, Trump used the vague terminology of the 1978 National Security Civil Service Reform Act to justify eliminating (or preventing the establishment of) collective bargaining rights in all or part of 20 federal agencies. These include key military command centers such as the Bureau of Land Management, the National Science Foundation, and the National Weather Service.
Joe McCarten, a labor historian at Georgetown University, has described the cancellation of collective bargaining as “the largest union-busting operation in American history,” and he’s right. One might have thought that President Ronald Reagan’s firing of 11,000 PATCO flight controllers in 1981 was a major event. But in August alone, as the New York Times reported on Labor Day, Trump’s actions stripped more than 445,000 federal workers of their protections. Harold Myerson of The American Prospect put the number at more than 1 million, which, he noted, represents one-fifth of all Americans covered by a collective bargaining agreement. In June, the American Federation of Government Employees obtained a preliminary injunction against these firings in district court, but the Ninth Circuit Court of Appeals later stayed the injunction pending review of the case.
The one area where Trump has refrained from declaring a state of emergency is the provision of disaster aid, under the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1974, to states struggling to recover from floods, hurricanes, wildfires, and the like. While Trump may invent fake emergencies, he neglects real ones! He has even proposed abolishing the Federal Emergency Management Agency (FEMA), which manages disaster funds. This proposal is no longer on the table, but under Trump, the agency’s response has been slower and more rigorous than before.
One of the most formidable obstacles to overcoming the emergency is the lack of a clear legal strategy to stop Trump’s excessive use of emergency powers. “I’m not aware of any legal challenges to the excessive use of emergency powers,” Goitein told me, and if she isn’t aware of any, I doubt anyone else is. Impeachment might offer greater freedom, but we’re still a long way off. Lawyers are therefore forced to challenge individual abuses in court as soon as they arise.
Goitein actually had an idea: she was suggesting that judges start granting less deference to the executive branch. She pointed out that in Sterling v. Constantine (1932) and Baker v. Carr (1962), the Supreme Court had suggested circumstances in which presidents should be accorded less deference than usual. In Sterling, the Supreme Court referred to a “permissible scope of honest judgment,” meaning that bad faith falls outside that scope. One difficulty, however, is that Sterling implied that executive power is exercised at the state rather than the federal level.