The Volokh Conspiracy
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My New Lawfare Article "Trump's 'Emergencies' Are Pretexts for Undermining the Constitution"
The article explains why these claims to emergency powers are illegal and dangerous, and how to stop them.
Today, Lawfare published my article "Trump's 'Emergencies' Are Pretexts for Undermining the Constitution." Here is an excerpt:
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…..
On immigration, Trump asserts vast emergency powers by claiming that illegal migration and drug smuggling amount to an "invasion," issuing an executive order to that effect. He further claims that this authorizes him to invoke the Alien Enemies Act (AEA)—a 1798 law that can be used only in the event of war, "invasion," or a "predatory incursion" by a foreign government. Trump's invocation of the AEA is—so far—limited to alleged members of the Venezuelan drug gang Tren de Aragua (TdA). But similar reasoning could be used to target migrants from almost any country that is a source of illegal migration or drugs….
Trump has also declared an "emergency" at the southern border, despite the fact that illegal entries have been low since his term started. The "emergency" and the "invasion" executive orders have been invoked to shut down most legal migration across the southern border, inflicting grave harm on immigrants fleeing oppression (many thousands of whom will be denied the opportunity to seek asylum).
These measures set the stage for the administration's dangerous—and illegal—uses of the AEA. Trump's "invasion" theory goes against extensive evidence that, under the Constitution and the AEA itself, "invasion" means an "operation of war" (as James Madison put it), not mere illegal border crossing or drug smuggling. Before Trump, the AEA had been used only three times, all during major wars against foreign powers: the War of 1812, World War I, and World War II. As several courts have now ruled, a "predatory incursion" (which is an alternative ground for invoking the AEA) is also a type of military attack. If illegal migration and drug smuggling qualify as "invasion," then the U.S. must necessarily be in a state of "invasion" at all times, since these phenomena are ubiquitous….
Trump has used the AEA as justification for deporting people to imprisonment in El Salvador without due process (and, in many cases, in error)—and then claiming that they cannot be returned on the grounds that they are in the custody of a foreign power. This is a blatant violation of the Fifth Amendment, which requires "due process of law" before anyone can be deprived of "liberty…."
With his "Liberation Day" executive order, Trump has imposed massive tariffs on goods from almost every nation in the world, triggering the biggest trade war since the Great Depression. This order relied on the 1977 International Emergency Economic Powers Act (IEEPA), which can be invoked only in the event of an "emergency" arising from an "unusual and extraordinary" threat from abroad. Trump's invocation of emergency powers to impose the "Liberation Day" tariffs suggests that the president can impose a tariff of any amount, on goods from any country, for any reason. If long-standing (and generally harmless) trade deficits that supposedly justify these measures qualify as an "emergency" and an "extraordinary and unusual threat," the same can be said of virtually anything. Indeed, Trump now threatens to use IEEPA to impose 100 percent tariffs on foreign-produced movies, based on the dubious claim that they pose "a National Security threat…"
Trump is far from the first president to abuse emergency powers. President Biden, for example, used the coronavirus emergency as a pretext to raid the Treasury to forgive some $400 billion in student loan debt (the Supreme Court rightly ruled against him). More generally, the National Emergencies Act of 1976, at least as currently interpreted, has made it too easy for presidents to declare an "emergency" in a wide range of circumstances that do not merit it.
But Trump's abusive emergency power claims are distinctive in the enormity of their scope. Using claims of "invasion" to shut down most legal migration across the southern border and engage in deportation and imprisonment without due process is unprecedented. Shutting down asylum condemns hundreds of thousands of migrants to poverty and oppression. If allowed to continue, deportation without due process could similarly be used against others, including legal immigrants and even U.S. citizens.
Using a fabricated "emergency" as a pretext to start the biggest trade war since the Great Depression is also an unprecedented abuse of the system of emergency powers, one that will impose some $1.4 to 2.2 trillion in tax increases on Americans over the next decade. By comparison, Biden's $400 billion student loan forgiveness power grab seems relatively modest….
In the long run, constraining dangerous emergency powers requires both judicial and legislative vigilance. Courts would do well to enforce the ordinary language definition of "emergency" as a sudden unexpected crisis, not just any possible public policy problem. As a House of Representatives report leading to the enactment of IEEPA explained, "emergencies are by their nature rare and brief, and are not to be equated with normal ongoing problems…."
Congress should adopt legislation limiting presidentially declared emergencies to 30 days, unless it affirmatively votes to extend such emergencies. This would represent a marked improvement on the current system, under which Congress can terminate a presidentially declared emergency only by passing a new law—a near-impossible feat, given the two-thirds supermajority required to override a nearly inevitable White House veto….
