The Dangerous Normalization of Emergency Powers

Recent Presidential administrations of both parties have demonstrated just how dangerous unchecked emergency powers can be. Unless Congress acts now, the next president will inherit, and almost certainly expand, a set of extraordinary authorities that were never intended to address long-standing policy problems and continue to use them as an “end-run around Congress.”

The National Emergencies Act (NEA) was never intended to serve as a standing authorization for presidents to bypass Congress and govern by decree. Instead, the NEA was meant to temporarily empower the Executive Branch to address an unforeseen crisis like natural disasters or pandemics. Yet over the past decade, emergency declarations have increasingly become a policy shortcut and a way to achieve outcomes that could not pass through the regular legislative process. That trend did not begin or end with a single administration, and it should alarm Americans across the political spectrum.

The Slow Creep of Emergency Powers

Long before recent Presidents tested the limits of emergency authority, Congress and the courts had already allowed extraordinary powers to quietly migrate, and oftentimes replace, ordinary governance. Since the passage of the NEA in 1976, national emergency declarations have increasingly outlived the crises that ostensibly justified them, remaining in force for years or even decades with little meaningful oversight. According to the Brennan Center:

25 emergencies have lasted 10 years or longer; 13 of these were declared between 2001 and 2008. The longest-lasting emergency, Blocking Iranian Government Property, was first declared in 1979 on the heels of the hostage crisis and has been persistently renewed for 39 years.

What began as a mechanism for rapid response to unforeseen threats gradually evolved into a parallel policymaking track where statutory constraints loosen, congressional approval becomes optional, and temporary measures harden into permanent authority.

Recent Presidents Show the Risks of Unchecked Emergency Power

Under President Biden, the administration relied on a long‑running national emergency declaration to justify sweeping student loan forgiveness under the HEROES Act of 2003. That statute was narrowly designed to protect service members from financial harm while deployed on active duty. The administration attempted to stretch that narrow law into justification for forgiving student loan debt for tens of millions of borrowers, including those with no evidence of economic harm from the COVID emergency. The Supreme Court rejected that interpretation, ruling that the HEROES Act did not grant such broad authority.

President Trump likewise tested the outer bounds of emergency power, particularly through the International Emergency Economic Powers Act (IEEPA). His administration claimed authority to impose sweeping global tariffs by declaring a national emergency related to trade deficits. While the Supreme Court ultimately ruled against using IEEPA to impose tariffs, it did so on narrow grounds, leaving unresolved the underlying emergency declaration and whether the statute could be used to impose embargoes or quotas.

Taken together, these cases underscore the core problem: even when emergency‑based policies are eventually struck down, presidents face little downside in asserting them in the first place. Emergency declarations take effect immediately, courts move slowly, and the underlying statutory authorities remain available for future use. Executive branch overreach must be checked by a Congress able and willing to assert its exclusive authority to make laws under Article I of the Constitution.

The Progressive Left Has Grand Plans for Emergency Powers

On the progressive left, emergency authorities have long been viewed as tools to be preserved and expanded, laying the groundwork for sweeping policy action once political conditions allow.

During the summer of 2022, the Biden Administration faced pressure from Congress and outside groups to declare a national emergency over climate change. Media reports at the time suggested the Administration would use it to ban oil exports and end offshore oil and gas production. The effort garnered 62 cosponsors in the House and four in the Senate. One environmental coalition touted 1,200 signatories in support. Former climate envoy John Kerry said they were “very close” to taking such a step.

While they failed during the Biden Administration, progressive groups like the Center for Biological Diversity and the Roosevelt Institute have openly endorsed using IEEPA emergencies to shut down imports and exports of fossil fuels. And last year one left-wing commentator suggested using emergency power to “expand the Supreme Court” and “establish Medicare for all”.

The Roosevelt Institute lamented the Supreme Court’s ruling against IEEPA tariffs, saying “this precedent will be weaponized against future administrations that try to use government to improve people’s lives.” But the Supreme Court narrowly ruled against using IEEPA to impose tariffs and left the door open as to whether the President could use IEEPA for embargos or quotas. The potential for abusing IEEPA to enact economy-wide decisions without Congress remains an active threat. And if progressives get their way on packing the court, the Supreme Court is unlikely to stop it.

Reform is a Viable and Necessary Option

There is widespread agreement that the NEA is in dire need of reform. Groups from across the ideological spectrum including the ACLU, Brennan Center, and CREW on the left, and Americans for Prosperity, National Taxpayers Union, and R Street on the right, wrote a joint letter to Congress in favor of reform in October 2024.

Congress has already demonstrated that bipartisan agreement is possible. The ARTICLE ONE Act, which would require Congress to affirmatively approve national emergency declarations after 30 days, advanced out of House and Senate Committees in December of 2024 with only one vote against. Unfortunately, ARTICLE ONE and the similar REPUBLIC Act have not been reintroduced in the 119^th Congress.

The abuse of emergency powers subverts democratic institutions, undermines the separation of powers, and threatens individual rights. If Congress fails to act, there will be little standing between today’s emergency overreach and far more sweeping unilateral actions by the next Democratic or progressive president, all undertaken without congressional approval and shielded by decades-old emergency statutes.

Kevin Schmidt is Director of Investigations for Americans for Prosperity Foundation and leads the Emergency Powers Reform Project.