Donald Trump invoked emergency powers more times in his first 100 days in office than any other modern president has done during the same time period.
Brendan Smialowski/AFP via Getty Images
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Brendan Smialowski/AFP via Getty Images
The United States is currently dealing with multiple emergencies at once, according to President Trump’s administration. There’s a national emergency at the southern border, an energy emergency and an economic emergency, to name a few — and the president has used these to enact some of his most wide-reaching policies, from pushing fossil fuel production to seeking to complete the border wall with Mexico and setting steep and sweeping tariffs.
While presidential use of emergency powers has been on the rise in recent administrations, Trump invoked them eight times in his first 100 days in office, more than any other modern president has done in the same period.
Challenges to Trump’s emergency orders have yet to reach the Supreme Court, but legal experts worry his use of them could lead to an upending of the constitutional balance of power if the Supreme Court sides with the administration, essentially giving the president free rein to do more without congressional approval.
“This is pedal to the metal on executive power,” says Kim Lane Scheppele, a professor of sociology and international affairs at Princeton University who is a scholar on the use of emergency powers.
Some courts have ruled that Trump is exceeding his power, particularly in regard to tariffs, and appeals are ongoing. But Scheppele says the Trump administration expects a friendly reception if a legal challenge to the president’s emergency powers reaches the Supreme Court — and it seems likely that it will.
“The point of it is to get the case to the Supreme Court when he thinks he’s got a majority, to give him unlimited power,” she says. “I mostly study the fall of democracies in other places, and it’s through this expansion of unlimited executive power. I’m worried that’s the path we’re on.”
The White House defends Trump’s use of emergency powers.
“President Trump is rightfully enlisting his emergency powers to quickly rectify four years of failure and fix the many catastrophes he inherited from Joe Biden,” White House press secretary Karoline Leavitt told NPR in a statement, citing border security, the wars in Ukraine and Gaza, climate regulations, inflation and trade deficits.
Trump is sworn in as the 47th president of the United States by Chief Justice John Roberts as Melania Trump holds the Bible on Jan. 20. Trump invoked emergencies eight times in his first 100 days in office.
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Morry Gash/AFP via Getty Images
At the same time, critics argue that several of Trump’s declarations are not, in fact, immediate emergencies — and therefore should be dealt with through policy put into legislation by Congress.
For example, Trump declared a “national energy emergency,” which says the U.S. needs “a reliable, diversified, and affordable supply of energy” to make up for the nation’s “inadequate energy supply and infrastructure.” The U.S. is not currently facing a fuel shortage.
Or when Trump declared America’s “large and persistent” trade deficit a national emergency, saying that it constitutes “an unusual and extraordinary threat to the national security and economy of the United States.” The U.S. has been running a trade deficit for decades.
What is an emergency power?
A president can declare a national emergency at any time, without approval from Congress.
That declaration allows presidents to temporarily enhance their executive powers, with the idea being that passing laws through Congress is too slow in rare moments of crisis and the president needs the flexibility to act quickly and send resources where they are needed.
But what constitutes an “emergency” has never been defined by law — creating a system of trust around the president to be able to identify an emergency.
Essentially, it’s an emergency if the president says it is.
“Emergency powers are a little bit scary,” Elizabeth Goitein of the Brennan Center for Justice, a progressive law and policy organization, recently told NPR’s Morning Edition. “The entire purpose of them is to give the president a degree of legal leeway that Congress does not think would be appropriate during nonemergency times.”
Goitein and her colleagues compiled a list of about 150 legal powers — many of which have never been used — that a president can unlock by declaring a national emergency. While some do require congressional approval to enact, most don’t, and she points out that many of those legal powers leave room for interpretation.
“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,” she says.
How does Trump compare to other recent presidents?
Trump has declared eight national emergencies so far in his second term and 13 in his first term — 21 total so far. For comparison, during his four years, President Joe Biden declared 11, President Barack Obama declared 12 in his eight years, while George W. Bush declared 14, according to data compiled by the Brennan Center.
It’s not just the rate of Trump’s use of emergency powers that’s alarming to constitutional experts, it’s also what he is using them for.
Presidents have often used emergency powers for things like freezing assets or imposing sanctions on specific foreign entities, or in times of notable crisis like after the 9/11 attacks or during the COVID-19 pandemic (a national emergency declared by Trump in his first term and later ended by Biden).
Legal experts say this time around, Trump is primarily using emergencies to try to carry out his domestic priorities more quickly than trying to pass laws through Congress — which is the traditional constitutional check on executive power.
“In President Trump’s second term, we’ve seen really heavy reliance on emergency powers to implement the president’s policy agenda,” says Goitein. “The majority of these declarations appear designed to get around Congress on policy questions. That is an inappropriate use of emergency powers.”
Trump participates in a ceremony commemorating the 200th mile of border wall at the international border with Mexico in San Luis, Ariz., in 2020. He declared a national emergency to help fund the wall.
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Saul Loeb/AFP via Getty Images
Goitein says that pattern started in Trump’s first term, when he declared a national emergency to help fund the southern border wall after Congress didn’t approve the full amount. That move triggered lawsuits, but the cases didn’t reach the Supreme Court before Biden took office and overrode the border emergency.
Biden also then continued that pattern, using emergency powers to forgive student loan debt after Congress blocked his plan. That was ultimately struck down by the Supreme Court.
Elena Chachko, an assistant professor of law at Berkeley Law School, says it’s the president’s pushing of boundaries — and the legal challenges that follow — that will ultimately define how emergency powers can be used.
“This is what happens when you take an instrument that has been very useful for many administrations, for many years, and now you overextend it,” she says. “You use it to do novel things with questionable legal basis, and what you do is invite pushback and invite criticism and invite limitations.”
Limitations on emergency powers
Those limitations — if they happen — won’t happen quickly. And they aren’t guaranteed.
In 1976, Congress passed the National Emergencies Act in an attempt to put some limits on emergency powers, largely in response to President Richard Nixon’s secret expansion of the Vietnam War in Cambodia without congressional approval. That act said, basically, that Congress could terminate an emergency declaration at any time with what was called a “legislative veto.”
But in 1983, in an unrelated case, the Supreme Court ruled legislative vetoes unconstitutional, making it much more difficult for Congress to interfere.
Congress may still end a national emergency, but such steps are exceedingly rare, in part because they require the support of a two-thirds majority in both chambers to succeed.
“We may be reaching a point in which there is going to be a sense of, OK, even the reining in that happened in the ’70s is no longer sufficient,” says Jennifer Hillman, a professor at Georgetown University Law Center. “And maybe Trump is pushing that envelope in terms of how far he’s going, and wanting, if you will, the unitary executive, this notion that the president is all powerful.”
One way to limit that power is through legislation. There was a bipartisan effort for such reform back in 2019, after Trump’s border wall declaration. It was overwhelmingly popular in committee votes in both the House and Senate, but has stalled since.
The White House intends to take any legal challenges all the way to the Supreme Court.
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Another way is through the courts. Legal challenges to several of Trump’s emergency declarations, particularly in relation to tariffs, have been working their way through the courts, with some courts saying Trump has exceeded his power. The administration has appealed.
In May, White House spokesperson Karoline Leavitt said the administration didn’t intend to back down. “We expect to fight this battle all the way to the Supreme Court,” she said, talking about the challenges to Trump’s tariffs.
Several legal experts NPR talked to are split on predictions for what the Supreme Court might decide in that case. But Scheppele, the professor at Princeton University, says that decision would be about more than tariffs.
“I’m extremely worried that there’s a bigger thing at stake here,” she says. “What I’m really worried about is that these are being set up as test cases to say: Can the Congress require the president to follow rules that Congress has set when it comes to declaring emergencies?”
And, she says, if the courts ultimately decide the answer to that question is no, that could put the constitutional balance of power at stake.
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