The Only Emergency is His Declaration of “National Emergencies” to Advance a Fascist Agenda by Consolidating Power*
Federal law delegates to the president the authority to respond to certain crises on an emergency basis which the government cannot address through its normal operations. In discrete statutes Congress has delegated to the president the discretion to “declare” an occurrence or set of circumstances an “emergency” — a serious, unexpected, dangerous situation requiring immediate action — which is the triggering event to invoke the exceptional powers in the president to remediate the emergency.
The intent behind those statutes is that the president shall invoke these powers only in actual emergencies. The delegation was never designed or intended as a means to enact policy or advance a partisan agenda.
If the president abuses the discretion to invoke those powers by declaring something a “national emergency” which just isn’t one, the executive usurps congressional authority, undermines separation of powers, uses those powers to push policy and partisan positions and, in the clear case of this president, advances a fascist agenda.
With the wide birth the separation of powers doctrine gives the branches of government, courts are reluctant to second guess the president’s decisions or to find s/he abused that discretion — subjecting the decision to an “arbitrary and capricious” challenge — even, apparently, where no acute national crisis exists, there is no emergency, and where the president has, obviously, distorted and misapplied the law to achieve political objectives.
Clearly, the incoming Trump administration scoured the United States Code to find every statute that delegates these special powers to the president in a “declared” emergency. On day one, and continuing to the present, he has declared emergencies to trigger access to the power as a principal means to implement his partisan agenda, in violation of the separation of powers, the Constitution, and a broad spectrum of constitutional rights.
As noted below, today he declared “a public safety emergency” in Washington D.C. as the predicate for placing its police department under federal control. This, despite that the crime rate in the District just hit a 30-year low. See Citing ‘Emergency,’ Trump Puts Washington, D.C. Police Under Federal Control and Deploys National Guard (Brian Bennett and Nik Popli, Time, August 11, 2025).
Governing by perpetual emergency, this administration misrepresents both the scope and urgency of those circumstances, using the laws to declare national emergencies to bypass Congress, consolidate power in the executive, and justify and achieve its authoritarian goals. This administration’s misuses and abuses of these powers violate the constitution in many ways, including:
infringing free expression and association
depriving due process (life, liberty, property)
denying equal protection of the laws
violating rights against unlawful searches and seizures
usurping Congress’ power of the purse
appropriating congressional war powers and
invading Congress’ constitutional domain, among others
Governing by emergency has consolidated power in the president that is not his. Sadly, this Congress is complicit, ceding its constitutional responsibilities to the president, twiddling its thumbs as democracy burns.
The following are a few examples of this administration’s misuse and abuse of Congressional delegation as a mechanism to attempt to implement an authoritarian regime capable of withstanding challenges by the electorate, Congress, and the courts.
Deploying the National Guard and Marines to Suppress Lawful Protests in California: The president is prohibited from using military force within the United States against civilians in normal law enforcement under the Posse Comitatus Act of 1878. Exceptions to that law — a body of statutes collectively known as the Insurrection Act — allows the president to call in national guard troops and the military if there is a “rebellion or danger of a rebellion against the authority of the Government of the United States” or if the “president is unable with the regular forces to execute the laws of the United States.”
Enabling language in this body of laws provides a good example of the circumstances in which Congress has delegated extraordinary powers to the president:
“Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”
10 U.S.C. § 332 (emphasis added).
The last time a president invoked the Insurrection Act was 1992 when George H.W. Bush deployed federal troops in California after the governor asked for assistance in the wake of the Rodney King verdict in which four police officers were acquitted of using excessive force. See What U.S. law says about Trump’s deployment of active duty troops to Los Angeles (Amy Sherman, PBS (originally PolitiFact), June 12, 2025); Legal experts worry about presidential abuse of the Insurrection Act. Here’s why (Carrie Johnson, NPR, March 28, 2025).
Despite the crime rate in Washington D.C. hitting a 30-year low, Trump declared “a public safety emergency in the District,” in further misuse of emergency powers to advance a political agenda. Today, he is placing the city’s “police department under federal control and deploy[ing] the National Guard, an escalation of federal power in his campaign to tighten control over the nation’s deep-blue capital city.” Trump places DC police under federal control, deploys National Guard (Irie Senter, Politico, August 11, 2025). Trump’s declaration was presaged by an attack on “Big Balls.” You remember Big Balls, the former DOGE software engineer? Big Balls was attacked and injured in Washington D.C. on August 3, 2025, during an alleged carjacking.
Deporting Venezuelans to an El Salvadoran Prison: The Alien Enemies Act of 1798 grants the president powers during a national emergency — times of declared war or invasion — to detain and deport foreign nationals deemed a threat to the country’s security. See 4 things to know about the Alien Enemies Act and Trump’s efforts to use it (Rachel Treisman, NPR, March 18, 2025).
Trade deficits and tariffs: The International Economic Powers Act enables the president to impose economic sanctions on hostile foreign actors and includes a long list of actions the president may take. The word “tariff” does not appear in the law. See How the President Is Misusing Emergency Powers to Impose Worldwide Tariffs (Elizabeth Goitein, Brennan Center for Justice, May 13, 2025) (“Concocting an emergency to advance economic and foreign policy goals is an abuse of power.”).
Emergency at the Southern Border: Trump declared an emergency at the southern border by invoking the National Emergencies Act of 1976. That law gives the president broad discretion to declare a national emergency which “serves as a trigger to unlock powers contained in 150 different provisions of law, including some that carry alarming potential for abuse. . . . [T]here are provisions allowing the president to take over or shut down communications facilities and to freeze Americans’ assets without judicial process. It is not hard to see how a president could wield these powers to erode both individual liberties and democracy itself.” See Trump’s Emergency Declaration at the Border Is an Abuse of Power (Elizabeth Goitein, Time, January 23, 2025).
Immigration and Deportations: Trump declared an emergency under the Alien Enemies Act of 1798, among other tools, to target, arrest, detain, and deport immigrants, and to expand the detention in concentration camps to non-violent immigrants and expedite their removal. See Mass Deportation: Analyzing the Trump Administration’s Attacks on Immigrants, Democracy, and America (American Immigration Council, July 23, 2025) (comprehensive report).
Domestic Energy Production: Under the National Emergencies Act, the president declared an emergency to facilitate production of domestic energy, primarily fossil fuels. See Demystifying President Trump’s “National Energy Emergency” and the Scope of Emergency Authority (Olivia Guarna and Michael Burger, Columbia Law School, Sabin Center for Climate Change, February 14, 2025). These authors give insight that applies to the invocation of all emergency powers and highlight Trump’s obvious abuses:
“As a general matter, the President derives emergency powers from the Constitution and statutes. Although presidential emergency powers can be quite expansive, the Supreme Court made clear in Biden v. Nebraska that emergency authority does not empower the President to take actions free from statutory limitations. In other words, announcing a ‘national energy emergency,’ regardless of fanfare and spectacle, does not give President Trump carte blanche to pursue his energy policy. In exercising emergency powers, the administration must act in accordance with the purposes and limitations of the laws granting those powers. Assuming, that is, that the rule of law continues to prevail in the United States.
“Although there are several emergency authorities that Trump’s administration could seek to employ — and many more non-emergency legal authorities — the success of this strategy may well depend in part on the legitimacy of the underlying emergency declaration. Because many authorities leave some ambiguity as to what constitutes a sufficient ‘emergency,’ an argument might be made that agency action taken based on a flawed emergency premise could be subject to ‘arbitrary and capricious’ challenges.
“Executive Order 14156 cites a handful of specific statutory provisions and regulations but also asks agencies to search for any and all lawful authorities they can use to advance President Trump’s energy policy, in an over-the-top, see-if-it-sticks, everything-and-the-kitchen-sink approach.”
(Emphasis added.)
He and his administration found ways he could consolidate power in the presidency, including use of emergency powers as a pretext where no emergency existed to bypass Congress and delay action by the courts. This Congress won’t do anything about it. If he has his way, neither will the next Congress due to obscene partisan gerrymandering.
Even if the courts will, and some are trying, by their nature and given the practicalities of litigation, courts are often slow to act. When courts do act by curtailing the president’s use of emergency powers where no emergency exists within the meaning of the enabling statute, this administration has shown it cannot be trusted to comply.
Release the Epstein files.
*My brother the talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner His second novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. It is a literary masterpiece.