On October 28, 2024, in front of a packed crowd in Madison Square Garden, Donald Trump took aim at his “enemies from within.” Accusing Kamala Harris of having “violated her oath, eradicated our sovereign border, and unleashed an army of migrant gangs who are waging a campaign of violence and terror against our citizens,” he reiterated a central promise of his campaign: that on his first day in office he would vanquish some of those “enemies” by initiating “the largest deportation program in American history.”
Less than two weeks after his victory, he confirmed how he planned to forcibly remove as many as 20 million people from the country. When a conservative commentator reported that the incoming administration planned to “declare a national emergency,” Trump gave an enthusiastic reply on his social media platform, Truth Social—“TRUE!!!” A poll conducted over the next several days suggested that many Americans supported him: 57 percent of respondents approved of “Trump starting [a] program to deport all immigrants in U.S. illegally.” Sixty-four percent supported using federal law enforcement agencies; 40 percent endorsed using the military.
On January 20 Trump declared not one emergency but three. The first, applying to the southern border, echoed an emergency he had declared in 2019. This time, much like previously, the president can circumvent congress on multiple issues, including military spending. The second emergency designates “cartels and other organizations” as “foreign terrorist organizations” under the International Emergency Economic Powers Act (IEEPA), typically enacted for sanctions. The third is a “national energy emergency” under which Trump can conceivably bypass a host of legal and environmental regulations that had impeded his promise in his first administration to “drill, baby drill.”
In the United States, as soon the president declares a national emergency—a decision entirely within his purview, typically done through executive order—he lays claim to nearly 150 otherwise dormant statutory powers. In his declaration, he must identify which of those powers he is activating. So far this term Trump has invoked two in connection with the border. The first is the construction authority in 10 U.S. Code Section 2808, which authorizes the secretary of defense to initiate any “military construction projects” needed “to support…use of the armed forces”—which is to say, in this case, to divert funds from other Department of Defense construction projects to military projects at the southern border, including the wall. It’s easy to imagine Trump, who used military installations in his first administration to detain immigrant children, deploying his emergency powers to augment detention facilities—already overcrowded and unprepared for the millions of additional undocumented immigrants slated for deportation—with military alternatives.
The second statute the president has availed himself of, 10 U.S. Code Section 12302, allows him to call up one million reservists, including National Guard forces, for twenty-four months. Except for the wars in Iraq and Afghanistan, in the past reservists have been activated a few thousand at a time for about a year. The large, extended military presence on the border that Trump envisions could require deployment on a much larger scale—one he has the power to determine.
Trump has yet to take advantage of the wide room to maneuver that these powers give him. So far his administration has largely relied instead on nonemergency statutory authorities to ramp up deportations, instructing Immigration and Custom Enforcement (ICE), for instance, to expand “expedited removal” under the Immigration and Nationality Act and the Illegal Immigration Reform and Immigrant Responsibility Act. The agency’s twenty-five field offices are under orders to intensify their “routine operations,” raising daily arrest quotas from a few hundred people to between 1,200 and 1,500. Raids across the country are sweeping up hundreds of immigrants who are not criminals but have merely crossed the border illegally—a civil offense.
Other executive orders have done still further damage. On Trump’s first day in office he signed an order directing the military to “seal the border.” Two days later the Pentagon said it was sending 1,500 troops to join the 2,500 already deployed there under Joe Biden; CBS reported that, according to an internal memo, the administration was discussing a total deployment of at least 10,000 new troops—more than any previous military border deployment. Deportations, meanwhile, began in earnest. Migrants have been forcibly removed to Guantanamo Bay, where the Trump administration plans to send as many as 30,000 deportees. A US military aircraft recently landed in Amritsar, a northwestern city in India, depositing over a hundred shackled Indian citizens who were in the US without documentation.
That Trump has already “flooded the zone” with scores of executive orders and potentially unprecedented deportation measures should inspire all the more concern now that he has declared three separate national emergencies. The president’s statutory powers during declared emergencies span agriculture, commerce, transportation, and public health, along with military deployment. Among much else, they could permit a president to test chemical weapons on civilians, seize Americans’ assets, shut down communications facilities, restrict travel, assert control over public transportation, and draw down equipment from national defense stockpiles.
In liberal regimes like ours, it’s precisely these fully legal emergency powers that can contain the seeds for authoritarian rule. Emergencies, also known as states of exception, are in principle meant to be temporary measures taken until necessary solutions can be found to unforeseen, existential threats. Ordinary laws no longer suffice; legislative processes would be too slow—and so lawmakers let the executive invoke extraordinary powers until the crisis is quelled or they introduce new legislation to address it, whichever comes first. Those powers can be contested in the courts, as Trump’s were in his first administration—but otherwise there are hardly any safeguards against abusing them. In 2021 a congressional report noted that during a national emergency “the authority of a President is largely determined by the President himself,” on the assumption that he will act in the public’s best interest.
But what if he doesn’t? “What if,” as Elizabeth Goitein, a legal analyst of emergency powers and their abuses, asked in a 2019 essay for The Atlantic,
a president, backed into a corner and facing electoral defeat or impeachment, were to declare an emergency for the sake of holding on to power? In that scenario, our laws and institutions might not save us from a presidential power grab. They might be what takes us down.
From John Locke onward, that anxiety has tormented theorists of liberal governance. In the US it has also long presented a dilemma for politicians and interest groups: because the outer limit of a president’s constitutional authority during an emergency has yet to be clearly defined, emergency declarations can bring the executive branch and Congress into conflict, leaving the courts to decide and enforce any executive overreach. To understand the potential for Trump’s rule to become a kind of legally enabled authoritarianism, it’s necessary to examine the historical processes that gave rise to these emergency powers.
Most countries today have constitutional provisions for national emergencies, but neither the United Kingdom nor the United States are among them. Only in the past half-century did both countries pass legislation to narrow and regulate the executive’s power to declare a state of emergency: the US’s National Emergencies Act (1976) and the UK’s Civil Contingencies Act (2004). Before he signed the NEA, President Gerald Ford observed that for decades a “maze of statutes” had governed the nation’s emergency powers. Some presidents had claimed such powers unilaterally: FDR declared a “limited national emergency” with no legal authority in 1939 and an “unlimited national emergency” in 1941, inventing the terms wholesale.
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Franklin Delano Roosevelt declaring a national state of emergency in response to Nazi Germany’s aggression, Washington, D.C., May 27, 1941
Our founding fathers worried about granting the executive wide-ranging discretionary power. They had, after all, been heavily influenced by Locke, who staunchly believed in a government of laws, not men. But Locke also recognized that there could be temporary exceptions to his vision; ordinary laws couldn’t anticipate every possible crisis. “Many things there are, which the law can by no means provide for; and those must necessarily be left to the discretion of him that has the executive power in his hands,” he wrote in his Second Treatise of Government (1689). “This power to act according to discretion for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative.”
Politicians and legal theorists on both sides of the Atlantic struggled for centuries over the implications of this sort of power. When was executive prerogative necessary? When was it legitimate? In Britain and its empire, the rule of law was considered the basis of good governance—in what circumstances should it be abandoned temporarily for its own preservation?
In 1865, when the colonial governor John Eyre declared martial law to brutally suppress the Morant Bay rebellion in Jamaica, debates erupted back in London over liberalism and authoritarianism. The Jamaica Committee—comprised of John Stuart Mill, Charles Darwin, Herbert Spencer, and others—was particularly incensed that Eyre had taken the extraordinary measure of arresting George William Gordon, a prominent mixed-race member of the Jamaican House Assembly, and transporting him from Kingston, where martial law was not in effect, to Morant Bay, where it was. There, with only the flimsiest of circumstantial evidence, Gordon was tried by a miliary tribunal, found guilty, and executed. The Jamaica Committee demanded that Eyre and his deputies be brought up on criminal charges for abusing martial law. Eyre’s supporters, including Thomas Carlyle and Charles Dickens, rejected that conclusion, arguing both that English common law did not apply to the empire’s Black subjects and that the state of exception had to allow for deterrent measures when, as in Jamaica, a British colony had a white minority.
They carried the day—Eyre was not brought up on charges. Officials thereafter eschewed ill-defined martial law, instead drafting all manner of acts, laws, and regulations that, taken together, created what the legal scholar A.W. Brian Simpson has called “statutory martial law.”1 A parent act enabled the executive to declare an emergency that would in turn activate hundreds of statutes permitting authoritarian measures like mass arrests and communal punishments.
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Honoré Daumier: Order Reigns in Jamaica, 1866
Legal authoritarianism, a hallmark of the empire, came to Britain itself in 1914 in the form of the Defence of the Realm Act (DORA), a wartime statutory martial law modeled on Ireland’s coercion acts. It permitted the executive to bypass Parliament to censor the press and post, detain individuals without trial, and outlaw strikes, among other sweeping powers. Six years later the Emergency Powers Act made those wartime prerogatives permanent during any emergency; subsequent Labour and Conservative governments used them largely to crush labor strikes, most recently in 1973 during the energy crisis and coal miners’ strike.
It took more than eight decades for Parliament to put significant restraints on executive powers by passing the Civil Contingencies Act, which prohibited the executive from, for instance, preventing strikes or altering “procedure in relation to criminal proceedings.” And yet the Coronavirus Act 2020—which granted the government emergency powers to contend with the pandemic’s long-term nature—bypassed many of the CCA’s guardrails. “We’ve never seen a bill like this,” the journalist and political commentator Ian Dunt wrote then. “It is the most extensive encroachment on British civil liberties we have ever seen outside of wartime.” Boris Johnson showed all too well that a prime minister could wreak all kinds of havoc by capaciously interpreting those emergency powers.
American emergency powers spring from a similar liberal tradition, and they too have sparked fierce disputes about the politics of necessity and legality. During the Civil War, with Congress out of session, Lincoln blockaded the southern coast, expanded the army and navy, appropriated funds for arms and ammunition purchases, and—in a move that incensed many observers—suspended habeas corpus. He was blatantly challenging constitutional powers. “These measures, whether strictly legal or not,” he later messaged Congress, “were ventured upon under what appeared to be a popular demand, a public necessity; trusting, then as now, that Congress would readily ratify them.” Which it did.
Forty years later Theodore Roosevelt and his successor, William Howard Taft, wrangled over “implied” constitutional powers. “I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it,” Roosevelt wrote in his 1913 autobiography. “My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.” Taft, however, dismissed the notion that the president had an “undefined residuum of power which he can exercise because it seems to him to be in the public interest.”
An anti-Lincoln caricature by John Tenniel showing the president rising from the ashes of civil liberties, Punch, 1864
The “maze of statutes” regarding executive power had been growing since the nation’s founding, giving the president considerable latitude to address military, economic, and labor crises, including by declaring a national emergency. In the 1970s some members of Congress grew more concerned about potential abuses of executive power: Nixon, for instance, declared two national emergencies, one to break up a postal strike and the other to control the balance of payments, which he used to bypass legislative oversight, terminate certain trade agreements, and impose tariffs. After plowing through the U.S. Code, a Senate committee found that 470 provisions of federal law delegated extraordinary emergency powers to the president; four obsolete proclamations of emergency were still in effect. “Unchecked by the Congress or the American people,” the committee concluded, this “extraordinary power” could have tyrannical consequences.
Senators on both sides of the aisle—including Democrat Frank Church and Republican Charles Mathias—praised the subsequent National Emergencies Act as a major reform. It set up three crucial safeguards against executive abuse of emergency power, permitting Congress to terminate a declared emergency by “legislative veto,” stipulating that an emergency should automatically expire after a year, and requiring Congress to meet every six months to consider a vote on terminating a declared national emergency. But as Goitein has recounted, the law’s promise was quickly dashed. In 1983 a Supreme Court ruling effectively invalidated the veto. The expiration requirement proved effectively useless: in practice the president’s signature is all that’s been required to maintain it, leaving some emergencies in place for years. As for the twice-a-year meetings, Congress simply hasn’t held them.
Since 1976 US presidents have declared national emergencies more than eighty times. Most of those decisions have involved triggering the IEEPA, which became law in 1977 and initially enabled the president to impose sanctions. Goitein has written that, starting with Ronald Reagan, successive presidents widened the executive power that accrued under the act by using it to shift “export control from Congress to the White House.” Bill Clinton went further “by targeting not just foreign governments but foreign political parties, terrorist organizations, and suspected narcotics traffickers.”
Since September 11 emergencies have been even more capacious in their reach. Less than two weeks after the attack, Bush issued Executive Order 13224, a domestic variation of the IEEPA. Still in force, the order stipulates that once a person or entity is placed on the government’s “Designated Individuals and Entities” list, no American or US entity can legally transact with them or provide them with support of any kind, effectively rendering them unable to pay rent, maintain a bank account, or hold a job. The government does not have to provide the targeted individual or entity any reason or evidence for its decision, which is extremely difficult to challenge in court.2 Just a month after Bush signed Executive Order 13224, Congress passed the Patriot Act, which tightened the order’s implementation: now, in Goitein’s words, the government can enforce its nontransaction measures “merely by opening an investigation into whether a person or group should be designated.” It was by citing Executive Order 13224 and the IEEPA that Trump designated “cartels and other organizations” as “foreign terrorist organizations.” It’s not difficult to imagine his administration eventually trying to use the IEEPA to punish Americans for providing support not just to organizations but to any undocumented immigrant.
Just before the election, more than thirty interest groups—ranging from the libertarian Americans for Prosperity to the ACLU—wrote to congressional leaders urging them to pass legislation reforming the NEA. Previous legislation, they noted, had stalled in congress even though it “passed out of committee in both the House and Senate with overwhelming bipartisan support.” The reforms, they insisted, would be “critical to preventing future abuses of emergency authorities.” Congress declined to act; now, with a Trump administration and Republican control of both houses, the prospects for reform are dim.
The result is that Trump has been left with a breathtaking range of emergency powers. He offered a preview of how he might use them in February 2019, the first time he declared a national emergency at the southern border, when he made his first use of the construction power in 10 U.S. Code Section 2808. Congress had repeatedly denied Trump budgetary allocations for a border wall—but now he could divert funds from other military construction projects without legislative approval. Was this a sudden or unforeseen crisis? Congress didn’t think so, voting twice to terminate the emergency. Trump vetoed each resolution, and Congress, unable to muster a supermajority, failed to override either veto. Plaintiffs in two court cases, Sierra Club v. Trump and El Paso County v. Trump, challenged his legal right to divert funds for the wall with mixed success.3
Trump is also contemplating other maneuvers to free himself of potential congressional intervention. In issuing the recent border emergency, he directed his secretaries of defense and homeland security to “submit a joint report” to him within ninety days recommending “additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.” An exception to the Posse Comitatus Act (1878), which significantly restricts the president’s ability to deploy the military domestically, the amended Insurrection Act broadly allows for the military suppression of an “insurrection, domestic violence, unlawful combination, or conspiracy.” In 1827 the Supreme Court ruled unanimously that “the authority to decide whether [an] exigency has arisen belongs exclusively to the president, and that his decision is conclusive upon all other persons.” Civil rights–era presidents used the act to enforce federal court orders desegregating schools and other institutions; George H.W. Bush invoked it during the Los Angeles riots of 1992. The only president to use it unilaterally is Lyndon Johnson, who deployed it in Alabama during the 1965 civil rights march from Selma to Montgomery.
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US National Guardsmen patrolling outside the New York City post office at Cadman Plaza at Richard Nixon’s orders during the postal strike, 1970
And yet Trump, in all likelihood, won’t need to resort to the Insurrection Act. He has enough congressionally delegated powers at his disposal already, from the authority available to him in the event of a proclaimed national emergency to the powers enumerated in nonemergency statutes like Section 502(f) (32 U.S.C.), which permits the president to use the National Guard in support of a federal military mission, and Section 1059 of the National Defense Authorization Act (FY 2016), which authorizes the secretary of defense to assist US Customs and Border Protection “for the purposes of increasing ongoing efforts to secure the southern land border.” The sheer number of Trump’s emergency declarations and executive orders suggests that he is moving away from appealing to a state of temporary exception and toward a kind of perpetual emergency—precisely the sort of authoritarianism, born from liberalism’s own statutes, that our founding fathers so feared.
What could check this executive overreach? Understanding authoritarianism’s potential, our founding fathers left all laws subject to judicial review. In January 2017, at the start of Trump’s first term, multiple lawsuits challenged his nonemergency orders, including Executive Order 13769, which restricted entry into the US from seven predominantly Muslim countries. After Judge James Robart, of the Western District of Washington, issued nationwide Temporary Restraining Orders (TROs), the Ninth Circuit Court of Appeals upheld the ban’s suspension.4 Legal challenges also succeeded against Executive Order 13768, which sought to withhold federal funding from jurisdictions, or “sanctuary cities,” that refused to cooperate with federal immigration enforcement.
This time, too, lawyers across the political spectrum have already filed a range of legal challenges against the administration’s executive overreach. The judiciary leans in Trump’s favor. During his first term he appointed 226 federal judges, including fifty-four appeals court judges, who have lifetime tenure and the final word on most legal appeals. Thus far, however, Trump is faring badly in the court system. TROs have paused the implementation of myriad orders—from ending birthright citizenship to shuttering USAID—pending further judicial review. The fate of many of those orders ultimately rests with the Supreme Court, to which Trump appointed three of the nine justices, and which recently granted the executive sweeping immunity powers. Even here, an unprecedented showdown is possible: recently J.D. Vance tweeted that “judges aren’t allowed to control the executive’s legitimate power,” suggesting that it is the executive, not the judiciary, who decides what is and what is not legitimate—or legal—for the president to undertake.
Trump’s Wall Street and Big Tech supporters may well push back, too, if his actions threaten productive efficiency, GDP growth, and market stability. Tariffs are rarely good for economies: they protect domestic industries—in this case bygone ones—from cheaper foreign goods and set off retaliatory trade wars that disrupt global supply chains, increase consumer prices, and reduce purchasing powers. After the president threatened tariffs on imports from Mexico and Canada, the markets tumbled.
Then there are the people. Since the protests that erupted following George Floyd’s murder in 2020, the past half-decade has been a relatively quiet, if not acquiescent, period for American mass mobilization. But that could change. If Trump’s latest executive overreach does catalyze wide public dissent, it would be in a Lockean spirit. When the executive stoops to “using force upon the people, without authority, and contrary to the trust put in him,” Locke wrote, it amounts to declaring “a state of war with the people, who have a right to reinstate their legislative in the exercise of their power.”
Reserving the power to use “force upon the people” is central to Trumpian ideology. In an interview last year with The New York Times, Vance showed that he understood that ideology well. “The thing that I kept thinking about liberalism in 2019 and 2020,” he said, “is that these guys have all read Carl Schmitt.” Schmitt was the Nazi jurist who defined the “sovereign” as “he who decides the state of exception.” For Schmitt, during a crisis, the foundation of political authority is a leader’s ability to claim absolute power, suspending law entirely and restoring order without accountability so as to preserve the state. He also famously emphasized the friend–enemy distinction: a democracy, he argued, required homogeneity among its citizens and the repudiation of “enemies” unlike them.
For Vance, it was the left, ostensibly pursuing total control over speech mores and cultural norms, who revealed Schmitt-like impulses. But in a much deeper sense he was, of course, describing Trump’s own administration. It is Trump who routinely divides the world into friends and enemies, and who since 2022 has threated to punish or prosecute his personal enemies more than a hundred times. It is Trump who has come to threaten civil rights and constitutionality itself. And it is Trump who seems poised to treat liberalism’s legal doctrine of emergency as a mechanism not for saving the republic from existential danger—the kind of temporary state of exception our founding fathers imagined—but for exercising pure power. Indeed, as I was finishing this essay, Trump took to social media channeling Schmitt’s vision. “He who saves his Country,” he posted, “does not violate any Law.”
