My New Dispatch Article on Judicial Review of Emergency Powers

It makes the case for strong judicial review of executive invocations of sweeping emergency powers.

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Today, The Dispatch published my article "Not Everything is an Emergency" (gift link). Here is an excerpt:

The Trump administration has attempted to make sweeping use of emergency powers in the areas of immigration, trade, and domestic use of the military. In each case, President Donald Trump has tried to use powers legally reserved for extreme exigencies—invasion, war, grave threats to national security—to address essentially normal political challenges. If he is allowed to get away with them, these abuses would set dangerous precedents and gravely threaten civil liberties and the structure of our constitutional system.

Each of these efforts has resulted in litigation, and in each case the administration claims the issues in question are left to virtually  unreviewable executive discretion. The president alone supposedly gets to determine whether an emergency exists and (with few or no limitations) what should be done about it. Courts have mostly rejected the argument that the president has the power to define terms such as "invasion." But they have often been overly deferential to presidential determinations about relevant facts, such as whether an "invasion" (correctly defined) has actually occurred. At least one judge has also embraced the view that these issues are unreviewable "political questions." It is vital that courts engage in full, nondeferential review of administration invocations of emergency powers. None of the arguments against doing so outweigh the immense dangers of letting the president invoke these powers at will…..

The Trump administration has attempted to make sweeping use of emergency powers in the areas of immigration, trade, and domestic use of the military. In each case, President Donald Trump has tried to use powers legally reserved for extreme exigencies—invasion, war, grave threats to national security—to address essentially normal political challenges. If he is allowed to get away with them, these abuses would set dangerous precedents and gravely threaten civil liberties and the structure of our constitutional system.

Each of these efforts has resulted in litigation, and in each case the administration claims the issues in question are left to virtually  unreviewable executive discretion. The president alone supposedly gets to determine whether an emergency exists and (with few or no limitations) what should be done about it. Courts have mostly rejected the argument that the president has the power to define terms such as "invasion." But they have often been overly deferential to presidential determinations about relevant facts, such as whether an "invasion" (correctly defined) has actually occurred. At least one judge has also embraced the view that these issues are unreviewable "political questions." It is vital that courts engage in full, nondeferential review of administration invocations of emergency powers. None of the arguments against doing so outweigh the immense dangers of letting the president invoke these powers at will….

Nondeferential judicial review of invocations of emergency powers is an application of the judiciary's normal role in interpreting the law and applying it to the relevant facts. Moreover, the use of terms denoting extraordinary dangers (such as "invasion," "rebellion," or "emergency") counsels against interpreting them in ways that allow invocation of these powers in normal times. Otherwise, these words become superfluous, and emergency powers turn into blank checks for executive power grabs.

The same point applies to factual deference. Courts routinely assess whether the factual prerequisites for applying a law are present. Emergency powers should not be an exception. Otherwise, the government could get around constitutional and other constraints on its authority simply by engaging in lying and misrepresentation about the facts on the ground.

In litigation over all three of its major invocations of emergency powers—immigration, tariffs, and domestic use of the military—the administration has also invoked the "political questions" doctrine, which holds that some issues are off limits to the judiciary, because they have been left to the political process…. But there is no general principle holding that invocations of emergency powers are exempt from judicial scrutiny….

Some defenders of the administration's position argue that courts should defer to the executive's specialized expertise on emergency power issues. But a genuine emergency does not require much expertise to detect. You don't have to be an expert to understand that Russia's assault on Ukraine is an "invasion" or that the COVID pandemic was an "emergency." The very enormity of true emergencies generally makes detection easy.

In rare cases where specialized knowledge is required, courts can take expert testimony and consider scientific evidence, as they routinely do in other situations. Courts also have procedures for considering classified information, when necessary….

Elsewhere in the article, I discuss the enormous issues at stake in cases involving dubious invocations of emergency powers:

Advocates of judicial deference claim it is important to give the president discretion to combat  threats. But the enormous risks such deference poses easily outweigh any possible advantage of increased executive flexibility. If illegal migration and drug smuggling qualify as an "invasion," the federal government, under the Constitution, could suspend the writ of habeas corpus whenever it wants, thereby gaining the authority to detain people without due process or filing charges. If properly invoked, the AEA allows detention and deportation even of legal immigrants.

In addition, the weak due process protections mean U.S. citizens may get ensnared in the process, as often happens even with ordinary deportations….

Likewise, normalizing domestic use of the military poses obvious dangers to civil liberties and social order. Routine use of the military for such purposes is a grave menace, and a hallmark of authoritarian regimes.

The stakes with Trump's IEEPA tariffs are also very high. If not struck down, they are expected to impose some $1.9 trillion in tax increases on Americans over the next decade, costing the average household some additional $1,000 per year, while also raising prices and greatly diminishing economic growth. In addition, giving one man total control over tariffs undermines the rule of law and the expectations of stability on which the international economy depends.