Updated June 6, 2025 at 7:52 AM PDT
President Trump has used emergency declarations to enact some of his most wide-reaching policies, from sweeping tariffs to completing the wall on the border with Mexico and boosting fossil fuel production.
While some courts have ruled that Trump is exceeding his power, and appeals are ongoing, federal law still grants the president vast sway to wield emergency powers. Under its traditional use and interpretation, this authority enhances the president's executive power temporarily during crises that occur too rapidly for Congress to respond in a timely fashion.
The Brennan Center for Justice, a progressive law and policy organization, has compiled a list of 150 legal powers a president can unlock by declaring a national emergency.
Elizabeth Goitein, the group's Liberty and National Security Program senior director, helped compile that list. She told Morning Edition host Steve Inskeep about how presidents can claim emergency powers and how their use can impact U.S. citizens, businesses and organizations.
She mentioned that her research is anxiety-inducing and has literally caused her to grind her teeth, drawing a rebuke from her dentist.
This interview has been edited for length and clarity.
Steve Inskeep: So what is it about the topic of emergency powers that would make you grind your teeth?
Elizabeth Goitein: Well, emergency powers are a little bit scary because the entire purpose of them is to give the president a degree of flexibility and legal leeway that Congress does not think would be appropriate during non-emergency times. Emergencies, by definition, are unexpected and unforeseen, and require immediate action. So Congress cannot legislate tailored powers in advance that are more tailored to that set of facts, and Congress moves too slowly to respond quickly enough or flexibly enough after the fact. And so what Congress does is grant the president this really extraordinary degree of power or discretion or flexibility in order to temporarily address the emergency until it passes or until Congress has time to enact legislation if the crisis becomes actually more of a new normal.
Inskeep: What are some of the emergencies that Congress has provided for?
Goitein: Well, Congress has provided for emergency powers across the full range of government activities, so transportation, communications, agriculture, military deployment, pretty much anything you can think of. And there are several statutory frameworks that govern emergency powers. But the main one, the broadest one, is the National Emergencies Act [of 1976]. When the president declares a national emergency, that unlocks powers that are contained in about 150 different provisions of law.
Inskeep: Such as what?
Goitein: Many of them really do seem pretty reasonable and measured on their face. But there are some that really do seem like the stuff of authoritarian regimes. There is a provision from the Communications Act [of 1934, amended in 1942] that allows the president to take over or shut down radio or wire communications facilities if he declares a national emergency or a threat of war. That provision was last invoked during World War II, when wire communications meant telephone calls or telegrams. Today, it could arguably be interpreted to allow the president to exert control over U.S.-based Internet traffic.
Inskeep: Or, for example, take over the television station and start broadcasting whatever you want. That's something a president could claim the power to do?
Goitein: At least on the face of this law. Now, there would be challenges. There would be First Amendment claims. One would hope that the courts would stand as a bulwark. But Congress did provide this sweeping power to the president with very few safeguards built in.
Inskeep: What are some other things the president can do in an emergency?
Goitein: Another frightening law is the International Emergency Economic Powers Act. That's actually the law that President Trump invoked to try to impose worldwide tariffs. It's historically been used to impose economic sanctions on hostile foreign actors. But on its face, it also allows the president to freeze Americans assets without any judicial approval or due process if the president deems the American to be contributing in some way to an unusual and extraordinary foreign threat.
Inskeep: So you've got a business. You do business somehow with China, you import something or you make something there or whatever. A president could decide there's an emergency and say, "I don't like your economic activity. Your business is mine."
Goitein: It doesn't even have to be economic activity. If in some way the American citizen or organization or business is contributing in some way to this threat that has been designated by the president, then the president can take economic action against that American. But the American's actions can be pretty much whatever the president deems to be contributing to the threat.
Inskeep: It seems to me that even when there are limitations on some of these laws, the president has asserted there is no limitation. If I am not mistaken, the law to which you were referring never has the word tariff in it, but the president chose to interpret it in such a way that he can do worldwide permanent tariffs.
Goitein: That's right. Now, he's not the first president to interpret similar language to incorporate tariffs. President Nixon actually used similar language in a predecessor statute to temporarily impose very limited tariffs. And there was a court, not the Supreme Court, that upheld that use of the law back in 1975. But we are in a very different situation right now, both because Trump is claiming the power to impose worldwide tariffs, pretty astronomical rates in some cases, but also because, frankly, the courts just interpret statutes differently today than they did in the 1970s. And they're going to require and they have required so far a much clearer articulation by Congress that Congress actually intended this law to be used for tariffs.
Inskeep: Who gets to define if an emergency is really an emergency?
Goitein: Unfortunately, the National Emergencies Act, even though it was passed to rein in a presidential use of emergency powers, does not include a definition of national emergency, and it doesn't include any substantive criteria that have to be met. So the president actually has significant discretion to decide whether a national emergency is. Now, of course, even the broadest of discretion can be abused, and the word emergency does have a definition. So at least in theory, a president could go so far that the courts would step in and say, that's not an emergency. But so far, courts have been very, very reluctant to do that.
Inskeep: Why do you think it would be that Congress over the years would draft emergency laws that would give criteria for when emergencies should be appropriate and leave them so vague?
Goitein: Part of the purpose of emergency powers is to give the president significant discretion. Now, in some cases, it seems pretty clear that maybe Congress went too far and Congress was relying on presidents to act in good faith and to use self-restraint in terms of not exploiting these powers in cases where they weren't actually needed. So to some degree, Congress was trusting in the judgment of presidents and that presidents would, in fact, be faithfully executing the law. But there's another issue here, which is that in the National Emergencies Act, as originally passed, Congress put in a very significant check against presidential abuse, and that was that Congress could terminate an emergency declaration at any time by passing what was called a legislative veto. And that's a law that takes effect without the president's signature. The problem is that a few years later, the Supreme Court ruled that legislative vetoes are unconstitutional. So that check went away. And today, if Congress wants to stop the president from using emergency powers under a declaration, Congress basically has to pass a law by a veto-proof supermajority of both houses, which is pretty much impossible in today's political climate.
Inskeep: So the Supreme Court destroyed the check on the president's power, but left the president's power?
Goitein: Exactly. And Congress left the president's power because at that point, Congress had options. And what Congress chose to do was to preserve the powers without that check. And at the time, Congress presumably thought that presidents would continue to exercise the kind of self-restraint that they generally have exercised under the National Emergencies Act. That just hasn't proven to be the case in recent years.
Inskeep: Why do you think it is that presidents in the past acted with some restraint and let's not say total restraint, because presidents have often taken drastic action that people disagreed with, but more restraint perhaps than we see now?
Goitein: Steve, if I knew the answer to that question… We have been so fortunate that presidents have adhered to these norms. I think we didn't, as a society, appreciate how fortunate we have been. I think presidents fundamentally believed in democracy and they believed in our constitutional design of the separation of powers, and that the balance of power among the three branches is what protects not only individual liberty, but democracy. I don't know what else it could be.
Inskeep: What is a change or reform that perhaps would cause you to grind your teeth less?
Goitein: After President Trump declared a national emergency in 2019 to secure funding for the border wall, members of Congress from both parties introduced legislation to reform the National Emergencies Act, and the primary legislation, which was actually introduced by Republican Senator Mike Lee [of Utah], is a bill that would require presidential declarations of emergency to expire automatically after 30 days unless Congress voted to approve the emergency declaration. What that reform does is it rebalances power between the president and Congress to be a little bit closer to what Congress intended when it passed the National Emergencies Act.
Inskeep: So this gets around that Supreme Court ruling. It allows Congress to affirmatively back up the president on a bipartisan basis, presumably, or things just don't go very far.
Goitein: Right. It gives the president maximum flexibility when it's most needed in the immediate aftermath of a crisis, while still allowing Congress to step in as a backstop after a period of time. So it's a very common sense reform, and it is wildly popular on both sides of the aisle. Last September, in the middle of the campaign, committees in the Senate and the House both voted on this legislation. In the Senate, the vote was 13 to 1. In the House, the vote was unanimous. You don't see those kinds of votes in today's Congress, but that's how popular this reform is. Unfortunately, like everything else, there is just very little bipartisan legislation on anything that's happening in Congress. But I do think that for this particular reform legislation, it really is a question of when rather than if.
The broadcast version of this story was produced by Barry Gordemer. The digital version was edited by Obed Manuel.
Copyright 2025 NPR
