On October 28, 2024, in front of a packed crowd in Madison Square Garden, Donald Trump took aim at his \u201cenemies from within.\u201d Accusing Kamala Harris of having \u201cviolated 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,\u201d he reiterated a central promise of his campaign: that on his first day in office he would vanquish some of those \u201cenemies\u201d by initiating \u201cthe largest deportation program in American history.\u201d<\/p>\n
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 \u201cdeclare a national emergency,\u201d Trump gave an enthusiastic reply on his social media platform, Truth Social\u2014\u201cTRUE!!!\u201d A poll conducted over the next several days suggested<\/a> that many Americans supported him: 57 percent of respondents approved of \u201cTrump starting [a] program to deport all immigrants in U.S. illegally.\u201d Sixty-four percent supported using federal law enforcement agencies; 40 percent endorsed using the military.\u00a0<\/p>\n 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 \u201ccartels and other organizations\u201d as \u201cforeign terrorist organizations\u201d under the International Emergency Economic Powers Act (IEEPA), typically enacted for sanctions. The third is a \u201cnational energy emergency\u201d under which Trump can conceivably bypass a host of legal and environmental regulations that had impeded his promise in his first administration to \u201cdrill, baby drill.\u201d\u00a0<\/p>\n In the United States, as soon the president declares a national emergency\u2014a decision entirely within his purview, typically done through executive order\u2014he lays claim to nearly 150 otherwise dormant statutory powers<\/a>. 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\u00a0U.S. Code<\/em>\u00a0Section 2808, which authorizes the secretary of defense to initiate any \u201cmilitary construction projects\u201d needed \u201cto support\u2026use of the armed forces\u201d\u2014which 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\u2019s easy to imagine Trump, who used military installations in his first administration to detain immigrant children, deploying his emergency powers to augment detention facilities\u2014already overcrowded and unprepared for the millions of additional undocumented immigrants slated for deportation\u2014with military alternatives.\u00a0<\/p>\n The second statute the president has availed himself of, 10\u00a0U.S. Code<\/em> 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<\/a> 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\u2014one he has the power to determine.\u00a0<\/p>\n 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 \u201cexpedited removal\u201d under the Immigration and Nationality Act and the Illegal Immigration Reform and Immigrant Responsibility Act. The agency\u2019s twenty-five field offices are under orders to intensify their \u201croutine operations,\u201d 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\u2014a civil offense.<\/p>\n Other executive orders have done still further damage. On Trump\u2019s first day in office he signed an order directing the military to \u201cseal the border.\u201d Two days later the Pentagon said it was sending 1,500 troops to join the 2,500 already deployed there under Joe Biden; CBS\u00a0reported<\/a>\u00a0that, according to an internal memo, the administration was discussing a total deployment of at least 10,000 new troops\u2014more 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.\u00a0<\/p>\n That Trump has already \u201cflooded the zone\u201d with scores of executive orders and potentially\u00a0unprecedented deportation measures should inspire all the more concern now that he has declared three separate national emergencies. The president\u2019s 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\u2019 assets, shut down communications facilities, restrict travel, assert control over public transportation, and draw down equipment from national defense stockpiles.\u00a0<\/p>\n In liberal regimes like ours, it\u2019s 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\u2014and 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\u2019s were in his first administration\u2014but otherwise there are hardly any safeguards against abusing them. In 2021 a congressional report<\/a> noted that during a national emergency \u201cthe authority of a President is largely determined by the President himself,\u201d on the assumption that he will act in the public\u2019s best interest.\u00a0<\/p>\n But what if he doesn\u2019t? \u201cWhat if,\u201d as Elizabeth Goitein, a legal analyst of emergency powers and their abuses, asked in\u00a0a 2019 essay<\/a>\u00a0for\u00a0The Atlantic<\/em>,\u00a0\u00a0\u00a0<\/p>\n 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.<\/p>\n<\/blockquote>\n 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\u2019s 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\u2019s rule to become a kind of legally enabled authoritarianism, it\u2019s necessary to examine the historical processes that gave rise to these emergency powers.\u00a0<\/p>\n 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\u2019s power to declare a state of emergency: the US\u2019s National Emergencies Act (1976) and the UK\u2019s Civil Contingencies Act (2004). Before he signed the NEA, President Gerald Ford observed that for decades a \u201cmaze of statutes\u201d had governed the nation\u2019s emergency powers. Some presidents had claimed such powers unilaterally: FDR declared a \u201climited national emergency\u201d with no legal authority in 1939 and an \u201cunlimited national emergency\u201d in 1941, inventing the terms wholesale.<\/p>\n FPG\/Getty Images<\/p>\n Franklin Delano Roosevelt declaring a national state of emergency in response to Nazi Germany\u2019s aggression, Washington, D.C., May 27, 1941<\/p>\n<\/figcaption><\/div>\n<\/figure>\n 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\u2019t anticipate every possible crisis. \u201cMany 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,\u201d he wrote in his\u00a0Second Treatise of Government<\/em> (1689). \u201cThis 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.\u201d\u00a0\u00a0<\/p>\n 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\u2014in what circumstances should it be abandoned temporarily for its own preservation?\u00a0<\/p>\n 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\u2014comprised of John Stuart Mill, Charles Darwin, Herbert Spencer, and others\u2014was 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\u2019s supporters, including Thomas Carlyle and Charles Dickens, rejected that conclusion, arguing both that English common law did not apply to the empire\u2019s 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.<\/p>\n They carried the day\u2014Eyre 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 \u201cstatutory martial law.\u201d1<\/a><\/sup>\u00a0A 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.\u00a0<\/p>\n Wikimedia Commons<\/p>\n Honor\u00e9 Daumier: Order Reigns in Jamaica<\/i>, 1866<\/p>\n<\/figcaption><\/div>\n<\/figure>\n 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\u00a0wartime statutory martial law modeled on Ireland\u2019s 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\u2019 strike.\u00a0<\/p>\n 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 \u201cprocedure in relation to criminal proceedings.\u201d And yet the Coronavirus Act 2020\u2014which granted the government emergency powers to contend with the pandemic\u2019s long-term nature\u2014bypassed<\/a> many of the CCA\u2019s guardrails. \u201cWe\u2019ve never seen a bill like this,\u201d the journalist and political commentator Ian Dunt\u00a0wrote then<\/a>. \u201cIt is the most extensive encroachment on British civil liberties we have ever seen outside of wartime.\u201d Boris Johnson showed all too well that a prime minister could wreak all kinds of havoc by capaciously interpreting those emergency powers.<\/p>\n 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\u2014in a move that incensed many observers\u2014suspended habeas corpus. He was blatantly challenging constitutional powers. \u201cThese measures, whether strictly legal or not,\u201d he later messaged Congress, \u201cwere ventured upon under what appeared to be a popular demand, a public necessity; trusting, then as now, that Congress would readily ratify them.\u201d Which it did.<\/p>\n Forty years later Theodore Roosevelt and his successor, William Howard Taft, wrangled over \u201cimplied\u201d constitutional powers. \u201cI 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,\u201d Roosevelt wrote in his 1913 autobiography. \u201cMy 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.\u201d Taft, however, dismissed the notion that the president had an \u201cundefined residuum of power which he can exercise because it seems to him to be in the public interest.\u201d<\/p>\n An anti-Lincoln caricature by John Tenniel showing the president rising from the ashes of civil liberties, Punch<\/i>, 1864<\/p>\n<\/figcaption><\/div>\n<\/figure>\n The \u201cmaze of statutes\u201d regarding executive power had been growing since the nation\u2019s 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\u00a0U.S. Code<\/em>, 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.\u00a0<\/sup>\u201cUnchecked by the Congress or the American people,\u201d the committee concluded, this \u201cextraordinary power\u201d could have tyrannical consequences.\u00a0<\/p>\n Senators on both sides of the aisle\u2014including Democrat Frank Church and Republican Charles Mathias\u2014praised 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 \u201clegislative veto,\u201d 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\u00a0recounted<\/a>, the law\u2019s promise was quickly dashed. In 1983 a Supreme Court ruling effectively invalidated the veto. The expiration requirement proved effectively useless: in practice the president\u2019s signature is all that\u2019s been required to maintain it, leaving some emergencies in place for years. As for the twice-a-year meetings, Congress simply hasn\u2019t held them.\u00a0<\/p>\n 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 \u201cexport control from Congress to the White House.\u201d Bill Clinton went further \u201cby targeting not just foreign governments but foreign political parties, terrorist organizations, and suspected narcotics traffickers.\u201d<\/p>\n 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\u2019s \u201cDesignated Individuals and Entities\u201d 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<\/a><\/sup>\u00a0Just a month after Bush signed Executive Order 13224, Congress passed the Patriot Act, which tightened the order\u2019s implementation: now, in Goitein\u2019s words, the government can enforce its nontransaction measures \u201cmerely by opening an investigation into whether a person or group should be designated.\u201d It was by citing Executive Order 13224 and the IEEPA that Trump designated \u201ccartels and other organizations\u201d as \u201cforeign terrorist organizations.\u201d It\u2019s 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.<\/p>\n Just before the election, more than thirty interest groups\u2014ranging from the libertarian Americans for Prosperity to the ACLU\u2014wrote to congressional leaders urging them to pass legislation reforming the NEA. Previous legislation, they noted, had stalled in congress even though it \u201cpassed out of committee in both the House and Senate with overwhelming bipartisan support.\u201d The reforms, they insisted, would be \u201ccritical to preventing future abuses of emergency authorities.\u201d Congress declined to act; now, with a Trump administration and Republican control of both houses, the prospects for reform are dim.\u00a0<\/p>\n 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,\u00a0<\/sup>when he made his first use of the construction power in 10\u00a0U.S. Code<\/em>\u00a0Section 2808. Congress had repeatedly denied Trump budgetary allocations for a border wall\u2014but now he could divert funds from other military construction projects without legislative approval. Was this a sudden or unforeseen crisis? Congress didn\u2019t 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,\u00a0Sierra Club\u00a0<\/em>v. Trump<\/em>\u00a0and\u00a0El Paso County\u00a0<\/em>v. Trump<\/em>, challenged his legal right to divert funds for the wall with mixed success.3<\/a><\/sup><\/p>\n 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 \u201csubmit a joint report\u201d to him within ninety days recommending \u201cadditional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.\u201d An exception to the Posse Comitatus Act (1878), which significantly restricts the president\u2019s ability to deploy the military domestically, the amended Insurrection Act broadly allows for the military suppression of an \u201cinsurrection, domestic violence, unlawful combination, or conspiracy.\u201d In 1827 the Supreme Court ruled unanimously that \u201cthe authority to decide whether [an] exigency has arisen belongs exclusively to the president, and that his decision is conclusive upon all other persons.\u201d Civil rights\u2013era 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.<\/p>\n Leslie Leon\/Keystone\/Getty Images<\/p>\n US National Guardsmen patrolling outside the New York City post office at Cadman Plaza at Richard Nixon\u2019s orders during the postal strike, 1970<\/p>\n<\/figcaption><\/div>\n<\/figure>\n And yet Trump, in all likelihood, won\u2019t 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\u00a0powers enumerated in nonemergency statutes<\/a> 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 \u201cfor the purposes of increasing ongoing efforts to secure the southern land border.\u201d The sheer number of Trump\u2019s 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\u2014precisely the sort of authoritarianism, born from liberalism\u2019s own statutes, that our founding fathers so feared.\u00a0<\/p>\n What could check this executive overreach? Understanding authoritarianism\u2019s potential, our founding fathers left all laws subject to judicial review. In January 2017, at the start of Trump\u2019s 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\u2019s suspension.4<\/a><\/sup> Legal challenges also succeeded against Executive Order 13768, which sought to withhold federal funding from jurisdictions, or \u201csanctuary cities,\u201d that refused to cooperate with federal immigration enforcement.<\/p>\n This time, too, lawyers across the political spectrum\u00a0have already filed a range of legal challenges<\/a>\u00a0against the administration\u2019s executive overreach. The judiciary leans in Trump\u2019s 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\u2014from ending birthright citizenship to shuttering USAID\u2014pending 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 \u201cjudges aren\u2019t allowed to control the executive\u2019s legitimate power,\u201d suggesting that it is the executive, not the judiciary, who decides what is and what is not legitimate\u2014or legal\u2014for the president to undertake.<\/p>\n Trump\u2019s 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\u2014in this case bygone ones\u2014from 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.\u00a0<\/p>\n Then there are the people. Since the protests that erupted following George Floyd\u2019s 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\u2019s latest executive overreach does catalyze wide public dissent, it would be in a Lockean spirit. When the executive stoops to \u201cusing force upon the people, without authority, and contrary to the trust put in him,\u201d Locke wrote, it amounts to declaring \u201ca state of war with the people, who have a right to reinstate their legislative in the exercise of their power.\u201d<\/p>\n Reserving the power to use \u201cforce upon the people\u201d is central to Trumpian ideology. In\u00a0an interview<\/a>\u00a0last year with\u00a0The New York Times<\/em>, Vance showed that he understood that ideology well. \u201cThe thing that I kept thinking about liberalism in 2019 and 2020,\u201d he said, \u201cis that these guys have all read Carl Schmitt.\u201d Schmitt was the Nazi jurist who defined the \u201csovereign\u201d as \u201che who decides the state of exception.\u201d For Schmitt, during a crisis, the foundation of political authority is a leader\u2019s ability to claim absolute power, suspending law entirely and restoring order without accountability so as to preserve the state.\u00a0He also famously emphasized the friend\u2013enemy distinction: a democracy, he argued, required homogeneity among its citizens and the repudiation of \u201cenemies\u201d unlike them.<\/p>\n\n
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