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 ongoing legal battle.
On immigration, Trump has invoked emergency powers by claiming that illegal migration and drug smuggling amount to an “invasion,” issuing an executive order to that effect. He has used this reasoning to invoke the Alien Enemies Act (AEA)—a 1798 law that can be used only in the event of war, or an “invasion” or “predatory incursion” by a foreign government. Under the executive order, Trump has claimed the authority to block nearly all legal entry by migrants across the southern border and deny them the right to apply for asylum. He has invoked the AEA against the activities of the Venezuelan drug gang Tren de Aragua (TdA), and used it to deport hundreds of Venezuelan migrants to imprisonment in El Salvador, with virtually no due process. Available evidence indicates that most entered the U.S. legally and have committed no crimes, and for the vast majority, the administration has presented no real evidence they are actually TdA members. Many have now been sent back to Venezuela (the regime they fled in the first place) in a dubious deal with the Venezuelan government, even as the administration continues to try to use the AEA to deport more migrants.
Illegal migration and drug smuggling exist at virtually all times, which would indicate the U.S. is pretty much always being “invaded” under Trump’s definition. So far, multiple lower court judges have rejected Trump’s claims that illegal migration and drug smuggling qualify as an “invasion” or “predatory incursion.” As James Madison rightly put it, “invasion is an operation of war.” One court has also held (correctly) that TdA does not qualify as a “foreign nation or government.” One judge, however, did issue a badly flawed decision holding that TdA’s activities qualify as a “predatory incursion.” And another has held that the definition of the AEA’s terms are political questions left to the executive. Several courts, including some that ruled against Trump, have held that the president deserves great deference on factual issues involving the AEA. Litigation is ongoing in multiple federal courts.
As with the supposed “invasion” of illegal migrants and drug traffickers, Trump has deemed longstanding trade deficits an “emergency.” His “Liberation Day” executive order imposed massive tariffs on goods from almost every nation in the world, triggering the biggest trade war since the Great Depression. He cited 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. Trade deficits are not an emergency, not unusual or extraordinary, and not really a threat at all. If trade deficits are enough to trigger invocation of IEEPA, then the president will have virtually unlimited power to impose tariffs (if courts reject constitutional nondelegation objections and arguments to the effect that IEEPA does not authorize tariffs at all).
Multiple lawsuits have challenged the IEEPA tariffs, including one by 12 state governments and another brought by the Liberty Justice Center, in which I am co-counsel, on behalf of five small businesses. In late May, the U.S. Court of International Trade (CIT) ruled against Trump in our case and the one brought by the states, holding that IEEPA does not grant unlimited tariff authority. A federal district court ruling issued the next day in a different lawsuit held that IEEPA doesn’t authorize tariffs at all. The Trump administration appealed both rulings, and the U.S. Court of Appeals for the Federal Circuit stayed the CIT decision until the appellate process is complete. Federal Circuit oral arguments in our case are scheduled for today, but the Supreme Court may well have the final say.
Returning to the “invasion” playbook, in June, Trump also took the unprecedented step of federalizing part of the California National Guard over the opposition of the state’s governor in a situation involving low-level violence and resistance to immigration enforcement raids. He relied on a federal law that can only be invoked in the event of 1) an “invasion” or danger of invasion by a foreign power, 2) a rebellion, or 3) a situation where the president is “unable with the regular forces to execute the laws of the United States.” A federal district court rightly ruled against Trump on the grounds that none of these circumstances existed; but the 9th U.S. Circuit Court of Appeals overruled it, holding that Trump’s assessment of the facts on the third issue deserves a high degree of judicial deference. Litigation continues here as well.
The case against deference.
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.
“Congress should also take a more active role by imposing time limits on emergency declarations and making clear they can only be used in strictly limited, extraordinary circumstances.”
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. The Supreme Court’s precedent here is an often incoherent mess. But there is no general principle holding that invocations of emergency powers are exempt from judicial scrutiny. As discussed more fully in an amicus brief I co-authored in one of the Alien Enemies Act cases (on behalf of the Brennan Center for Justice and the Cato Institute), courts have historically addressed such issues as whether a state of war or rebellion existed. With the exception of one aberrant district court ruling in an AEA case, every court that has considered these three issues so far has ruled that Trump’s invocations of emergency powers are not political questions, at least when it comes to interpreting the words of the law. In Trump v. J.G.G., the Supreme Court emphasized that judges may assess “questions of interpretation and constitutionality” relating to the AEA. The same is true of other emergency powers.
Some lower court rulings suggest the political questions doctrine may require a degree of deference on factual issues. But there is no reason to believe such deference is any more defensible in emergency powers cases than elsewhere. 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 (IEEPA includes a specific provision for doing so). At the very least, courts should not defer to the invocations of specialized expertise by the government unless and until it shows that such expertise is the true basis for the decision, as opposed to a mere pretext. In the AEA litigation, for example, the Trump administration rejected its own intelligence experts’ assessments that the Venezuelan government was not behind the activities of the TdA gang.
The stakes.
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. Trump’s use of the AEA to deport people to imprisonment is an extra layer of injustice, violating the due process clause of the Fifth Amendment.
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. The alarming extent to which Trump has exceeded the bounds of IEEPA is underscored by his new plan to impose a 50 percent tariff on Brazilian imports because that country is prosecuting his political ally, former president Jair Bolsonaro, for launching a coup to try to stay in power after losing an election. Trump’s recent trade “deals” with the European Union, Japan, and others do little to mitigate the harm caused by the tariffs (they leave in place extremely high tariff rates), and nothing to mitigate the illegality of the power grab.
Judicial review is not the only safeguard against executive abuse of emergency powers. Congress should also take a more active role by imposing time limits on emergency declarations and making clear they can only be used in strictly limited, extraordinary circumstances. But strong judicial review is nonetheless essential when Congress is unwilling or unable to act.
Trump is not the first president to abuse emergency powers, of course. President Joe Biden, for example, used the COVID emergency as a pretext to raid the Treasury to forgive some $400 billion in student loan debt (the Supreme Court rightly ruled against Biden). But Trump’s abuses are distinctive for their enormous scale, and the grave dangers they pose.
Draconian trade restrictions, deportation and detention without due process, and domestic use of the military against civilians were all among the grievances that the Declaration of Independence lists as justifications for rejecting the continued rule of King George III. Courts should not let Trump—or any president—use emergency powers to get away with similar abuses.
