The Emergency Presidency at Twenty-Five

Twenty-five years ago, we suffered the most devastating attack on U.S. soil since Pearl Harbor. Ratcheting up the shock from the death and destruction at the heart of Manhattan was uncertainty about the future: When might the terrorists strike again? Three days after the attack, President George W. Bush visited Ground Zero and delivered, impromptu, some of the most stirring words any president has spoken. Climbing atop a pile of rubble with a megaphone in hand, he was interrupted by voices in the crowd, complaining that they could not hear him. “I can hear you!” Bush responded. “I can hear you, the rest of the world hears you, and the people who knocked these buildings down will hear all of us soon.” Loud chants of “U.S.A., U.S.A.,” ensued.

That same day, the president declared a national emergency. The attacks, he explained in Proclamation 7463, and the “continuing and immediate threat of further attacks,” required the government to activate extraordinary powers, effectively putting the nation on a wartime footing. The directive would lead to far-reaching changes to the national security apparatus, to domestic surveillance practices, to immigration and travel policies—and to a string of wars that seems never to end.

Bush’s statement that the dangers were “continuing” as well as “immediate” proved more prescient than he could have known. We live in the shadow of the 9/11 emergency a quarter of a century later. Every president since Bush has extended the emergency declared that day. The extraordinary powers that the nation’s 43rd president invoked on September 14, 2001, have become ordinary.

The effect is to concentrate power in the hands of one person, the president of the United States. In one sense, this would be no surprise to the Framers of the U.S. Constitution. They created a single executive in part because the contingencies of public affairs demand what Alexander Hamilton called “decision, activity, secrecy, and dispatch”—features characteristic of a one-person executive but inherently lacking in a numerous legislative assembly. Hamilton further pointed out that “energy in the executive . . . is essential to the protection of the community against foreign attacks.”

Yet the Constitution contains no emergency clause. An emergency may provide occasion for the exercise of powers that are latent in ordinary times, but it does not create new constitutional powers. This, too, was deliberate. As Justice Robert Jackson wrote during the Korean War, the Founders “knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.”

We now live in an age of unending emergencies: 9/11, the financial meltdown of 2008, and the Covid-19 pandemic being the most prominent. Not surprisingly, each pitted emergency response against civil liberties, and each left the White House playing a more dominant role in the American republic.

The transformation has unfolded in stages. To be sure, President Bush invoked unilateral authorities under the National Emergencies Act, a statute enacted in 1976, but for his most dramatic and long-lasting actions, he turned to Congress, as the Constitution demands. He went to Congress for authorization to start the wars in Iraq and Afghanistan, and to Congress to get greatly expanded powers of national security surveillance. Congress passed two Authorizations for Use of Military Force, as well as the USA Patriot Act, by overwhelming bipartisan majorities. Both statutes remain in force today.

Thus, for all the talk of his executive unilateralism, Bush assumed his increased emergency powers the way the Constitution stipulates: by getting them through Congress.

The Covid emergency likewise led to vastly increased executive powers, arguably with even greater impact on civil liberties and ordinary life: closures of houses of worship and of schools, vaccine mandates, suppression of dissenting opinion about fact and policy, landlord-eviction moratoriums, and the like. For the most part, the presidents during Covid, Donald Trump and Joe Biden, also went to Congress for their emergency powers.

But unlike George W. Bush, Biden frequently did not abide by the restrictions and guardrails Congress placed. For example, the Biden administration imposed a nearly universal vaccination mandate in the name of the Occupational Safety and Health Act, a statute designed to address dangers stemming from the workplace, not from outside sources then affecting the workplace. And when Congress’s short-term eviction moratorium expired, the administration extended it and expanded its scope. (The Supreme Court invalidated both actions.) Thus, Covid represented a step not only toward greater constriction of the freedom that Americans have over their private lives but also toward executive-branch action lacking legislative warrant.

As for Trump, he has declared approximately 20 national emergencies in just over five years in office, far more on an annual basis than any predecessor. In no major area apart from taxation and expenditures has Trump gone to Congress to authorize the exercise of new powers.

His tariff executive order of April 2, 2025, is typical. Invoking a statute that does not even mention tariffs and had never before been used for that purpose, Trump declared an “emergency” and an “unusual and extraordinary threat” based on “large and persistent” trade deficits, and on that basis unilaterally raised taxes amounting to hundreds of billions of dollars on American firms that import foreign goods. Putting aside whether American trade deficits are truly a “threat” (most economists say no), it is hard to call a condition persisting for half a century an “emergency,” let alone “unusual and extraordinary.” We have run a trade deficit every quarter since 1974; and as a percentage of GDP, the deficit has barely moved up or down in the last dozen years. If this is an emergency, then every problem a president sees is an emergency, and he can take action to address it without bothering to deal with Congress.

The president’s ability to seize power by declaring emergencies has become a grave danger to our constitutional system of checks and balances. This is not a Donald Trump problem—it is a presidency problem. It requires little imagination to see what future presidents of a different ideological disposition might do with these powers.

There is an obvious solution, but it will require Congress to stand up and act—and to do so with such overwhelming majorities as to override the inevitable presidential veto. The National Emergencies Act must be amended to change the nature of congressional oversight. Under the current version, presidential declarations of emergency last only a year but may be extended unless Congress passes a joint resolution disapproving them. The rub is that joint resolutions are subject to presidential veto, which means that a president may keep emergency powers in place with the support of as few as one-third of the members of either house of Congress.

This provision should be amended to provide that emergencies cease after a year unless Congress passes a joint resolution affirmatively extending them. Such a motion should have fast-track status and be exempt from a filibuster. This would mean that no emergency can persist without the support of both the president and a majority in Congress. This reform would preserve the executive energy, speed, and dispatch necessary to deal with genuine emergencies while also ensuring that the people’s representatives get a vote on efforts to make permanent changes to how Americans live.