Late in the evening on his first day in office, President Trump spoke casually with reporters as he signed a slew of executive orders. He paused briefly when he got to the one declaring a "national energy emergency" — one of multiple emergencies he declared that day.
"That's a big one," he said. "You know what that allows you to do? That means you can do whatever you have to do to get out of that problem."
That's not quite true: Emergency declarations don't grant infinite powers. But they do grant expansive powers.
In his first term, Trump tested the limits of those powers when he used an emergency declaration to fund his border wall after a divided Congress didn't give him all the money he wanted. It was an unusual move, challenging the constitutional separation of powers, and it triggered lawsuits.
But those cases had not reached a Supreme Court decision by the time President Joe Biden took office. Biden overrode the border emergency and made the debate moot.
Now, as Trump takes office for the second time, he's pursuing an even more ambitious slate of emergency maneuvers, with potentially wide-ranging implications for people, businesses, the environment and the economy — and with very few checks and balances. These include not only the energy emergency but a cartel emergency and another emergency on the United States' southern border, which underpin his efforts to place tariffs on China, Mexico and Canada and to push again for the construction of a border wall.
After the inauguration, the emergencies began
Over the years, Congress has passed a number of laws that grant special powers to the president in the event of an emergency. In 1976, it also passed the National Emergencies Act in an attempt to lay down rules for how presidents could use those powers. The Brennan Center, a progressive law and policy organization, tallied up all those laws and counted 150 emergency powers, most of which have never been used.
In his declaration of a national energy emergency — which no president has ever declared before — Trump specifically mentioned emergency powers related to military construction, as well as emergency provisions in the Clean Water Act and Endangered Species Act that might speed up permitting for some energy projects. He also directed federal agencies to explore which other emergency authorities could promote the production of energy (or some forms of energy — oil and gas are emphasized, and wind and solar excluded).
On Day 1, Trump also once again declared an emergency on the southern border. That executive order, which opened with the words "America's sovereignty is under attack," revived his first-term argument that he can use emergency powers to redirect military resources toward building a border wall and other immigration-related actions.
As NPR's Joel Rose has reported, the president has also discussed using a law called the Alien Enemies Act to gain emergency powers that would let him bypass some normal immigration laws in a deportation push.
In early February, Trump used that emergency on the border — plus concerns about the fentanyl crisis — as the legal justification for tariffs imposed on China and threatened against Canada and Mexico.
The appeal of speed
There's nothing unusual about Trump imposing tariffs; he did it in his first term, and on the campaign trail, he promised to add more.
But using an emergency power to do it is unusual. The law that Trump invoked, the International Emergency Economic Powers Act, is often used for sanctions, but never tariffs.
"Using these for tariffs is really, really abnormal," says Philip Luck, the director of the economics program at the Center for Strategic and International Studies, a bipartisan think tank. "And using them as coercive leverage against allies is also really odd."
Trump can impose tariffs without an emergency, using powers delegated to him by Congress. That's how he put tariffs on aluminum, steel and Chinese goods in his first administration and how he may impose reciprocal tariffs on a slew of countries. But it requires following a specific process and soliciting public input.
Emergency powers speed things up.
"From a practical perspective, it gives him the ability to impose tariffs immediately," says Kelly Ann Shaw, a partner at the law firm Hogan Lovells and a former Trump adviser.
In arguing for tariffs, the White House has emphasized that tens of thousands of Americans are dying of drug overdoses each year, although Trump has used the immediate tariff threat as leverage to negotiate over other topics as well.
Speed is also a clear motivation for the other emergencies he has declared.
Kim Lane Scheppele, a scholar at Princeton University who has examined emergency powers for decades, says it's easy to imagine how they could be used to hasten the permitting for, say, oil or natural gas pipelines.
"It eliminates a lot of the environmental protection provisions. It eliminates a lot of the public participation in how these things are going to go," she says. "And so he's anticipating the objections and using emergency powers to forestall the objections."
"That's a totally different thing than building levees after [Hurricane] Katrina," she adds. Trump's energy emergency is political, she argues.
What constitutes an emergency?
Trump's energy emergency declaration is based largely on the idea that there could be power shortages in the future, if data centers and factories massively increase demand for electricity and the grid doesn't keep up.
But there are currently no wide-scale shortages of power. The U.S. produces more oil and natural gas than any other country in the world (or in history). Planning ahead to avoid a potential problem is important. But it's not what's typically meant by an emergency.
Elizabeth Goitein directs the Brennan Center's Liberty and National Security Program — her team is the one that tallied up the 150 emergency powers. She says not every serious problem is an "emergency." The word typically means something unexpected and requiring immediate action.
But the National Emergencies Act is missing something important.
"There's no definition of national emergency in the law," she says. And as a result, "courts have been very reluctant, in the absence of any definition of national emergency, to question a president's determination that an emergency exists."
It's an emergency, essentially, if the president says it is.
An attempt at checking the president's powers
The National Emergencies Act was born out of Congress' fear that presidential emergency powers were being abused.
In the 1970s, Congress realized there were four states of emergency that had been declared and were never revoked. The oldest, a Depression-era "bank holiday" emergency, was then some 40 years old. It was cause for alarm — and irritation. A Congressional Research Service report states that Congress felt "some annoyance that the President was retaining extraordinary powers intended only for a time of genuine emergency."
In passing the National Emergencies Act, Congress revoked all the existing states of emergency and tried to add some guardrails. Congress would review emergencies every six months. Lawmakers could terminate them at any time with a simple majority vote. And if Congress didn't terminate them, the emergencies would automatically expire after a year.
But since then, Goitein says, "each one of these three safeguards has failed in different ways."
The twice-yearly reviews simply didn't happen. Then a Supreme Court ruling in 1983 made it much, much harder to terminate an emergency, by allowing the president to veto such a move. This functionally means Congress needs a veto-proof two-thirds majority to override a president's emergency, which is essentially impossible in today's political climate. (Congress has tried only once. It attempted to terminate Trump's border emergency in his first term, to block that disputed wall funding, but couldn't reach the two-thirds bar.)
And the yearly expiration? Presidents just renewed their emergencies.
Today, dozens of emergencies are in effect, many of them justifying long-running sanctions on other countries: North Korea, Syria, Sudan, and the list goes on. The terrorist emergency declared after 9/11 is still in place. And the oldest one is again more than 40 years old. It was declared during the Iran hostage crisis, not long after the National Emergencies Act passed.
Few checks and balances
Concerns about emergency authorities clearly predate Trump and have extended to presidents from both major parties. But legal experts say the Trump administration has been unusually interested in testing the limits.
"They're pushing the boundaries like I've never seen before," Everett Eissenstat, a partner at Squire Patton Boggs and a former Trump adviser, said at a Federal Reserve Bank of Chicago symposium this month.
Nazak Nikakhtar, a partner at Wiley Rein and another former Trump adviser, says she thinks the administration is "emboldened" after experimenting with new authorities in the first administration.
Nikakhtar says there's a real debate happening within the legal community about whether Trump's unprecedented moves will hold up in court.
"I don't think this is an open and shut case either way," Nikakhtar says.
Take the tariffs. The emergency authority Trump is citing — the International Emergency Economic Powers Act — doesn't specifically mention that a president can impose tariffs. Did Congress make the statute vague on purpose, or not? Can he actually use that law for tariffs?
It's the kind of question the courts are more likely to consider. While declaring an emergency is essentially up to the president, what they do about that emergency — how those 150 powers can be put in use — is something judges feel more comfortable second-guessing.
When President Joe Biden attempted to forgive student loans, he used an emergency authority; in that case, he argued that the underlying emergency was the coronavirus pandemic. The Supreme Court struck that down on the basis that a president's emergency powers, while allowing him to waive or modify rules, don't specifically let him forgive loans.
During Trump's first term, similar arguments were made over border wall funding — that the president's emergency powers don't extend to reappropriating funds that Congress denied. At the time, those arguments persuaded lower courts but never reached a Supreme Court decision. Goitein expects similar suits will be filed again; this time, maybe they'll make it to the highest court in the land.
Far more powers, as yet untapped
The legal questions here are about more than just tariffs, construction funding or energy-project permitting. At their heart, they are about the limits of executive power.
A White House press official discussed the unprecedented use of emergency powers with an NPR correspondent. Without wanting to be quoted by name, because the comments hadn't been approved, the official affirmed that moving swiftly was a primary goal. The administration did not respond to a later request for on-the-record comments about the limits of those authorities.
Goitein, of the Brennan Center, says determining those limits is crucial. "There are powers that are available in a national emergency that are far more potent, including powers to shut down communications facilities, to control domestic transportation, to freeze Americans' assets without any due process or any judicial [approval]," she says. "So this question of 'What are the limits on a president's ability to abuse emergency powers?' is an absolutely crucial one for not just our individual liberties but for our democracy."
This doesn't mean emergency declarations are automatically alarming to legal scholars. Sometimes, a president can use emergencies to signal that a topic is a priority, rather than claim additional powers; during Trump's first administration, he declared an emergency over critical minerals, which helped accelerate funding for mines within existing executive powers, like Department of Energy loan programs.
And Goitein says there are times when emergency powers are absolutely appropriate. In fact, she argues that Trump underused emergency powers during the COVID-19 pandemic, when the administration held back on using things like the Defense Production Act to boost the manufacture of masks.
The question is how emergency powers are used — and for how long and with what limits.
Scheppele has studied how democracies, like Hungary, can turn toward autocracy. For her, the key question about the use of emergency powers is not whether they are legal — because lawful powers can be abused, she notes.
"The question is, does it move the president toward using powers that make it very difficult for powers ever to be taken out of his hands?" she says. "Autocracy is really about the executive capturing power and not letting it go."
With that in mind, she's watching to see whether declaring emergencies becomes a routine way for the Trump administration to push through policies over the objections of Congress or the public, sidelining the debates, compromises and checks and balances baked into democracy.
"Presidents use emergency powers all the time, and it doesn't mean they're dictators," says Scheppele. "But dictators almost always use emergency powers."
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