During a recent informal session ahead of the Tenth Circuit gathering, Justice Neil Gorsuch of the Supreme Court spoke out against what he sees as a troubling drift toward misusing emergency authorities to an unacceptable extent (a slightly more detailed account can be found here):
“Everything is an emergency,” he said…. “We’ve moved so much up to the federal level that needs to be done by states. And now through delegations of authority, through emergency legislation of all stripes, we’ve moved it over to the executive branch. And I just don’t think that’s a recipe for a healthy democracy over the long term.”
Gorsuch’s assessment hits a fundamental truth. We should not permit powers meant for truly dire moments to serve as a blank check the executive branch can wield at will. Regrettably, we have been drifting in precisely that perilous direction. Presidents from both parties have misused emergency authorities, with Trump—especially in his second term—standing out as a particularly egregious example.
While much of the responsibility for this state of affairs lies with Congress and the executive branch, Gorsuch and other judges can contribute by enforcing constitutional and statutory limits on the reach of emergency powers with greater rigor. As I discussed in greater depth in a Dispatch piece published last year, courts should subject both the meaning of terms like “emergency,” “invasion,” and “unusual and extraordinary threat” and the underlying factual circumstances to strong judicial review to determine whether the claimed dangers are actually present and justify invoking extraordinary powers. I also challenge the argument that courts should automatically defer to the executive on these matters, on the grounds of purported expertise on the part of the latter.
In fact, the Supreme Court has curtailed executive overreach in several consequential rulings under both Biden and Trump. Notable instances include the IEEPA tariff case (which I helped litigate) and the Illinois National Guard matter (both under Trump), and Biden v. Nebraska (2023), in which the Court rightly struck down Biden’s attempt to use Covid-era powers as a pretext to erase more than $400 billion in student loan debt. Last year, the Court also halted Trump’s bid to rapidly deport Venezuelans under the Alien Enemies Act, a statute that is only applicable in the event of an “invasion” or a “predatory incursion” on U.S. soil by a foreign government.
Yet in each of these cases, the Court did not rule on whether an actual emergency, invasion, or other extraordinary circumstance existed that would justify invoking emergency powers. Instead, it rejected the executive on other grounds. In one of the “shadow docket” cases involving the Alien Enemies Act, the Court did hold that the meaning of “invasion” and related terms in the Act is subject to judicial review. However, it did not address the question of deference when evaluating the factual premises. Consequently, the extent to which the Court is prepared to curb abuses of emergency powers remains somewhat unsettled.
To his credit, in 2022 Justice Gorsuch diverged from the other conservative members of the Court, and—together with the three liberals—dissented from a procedural ruling that effectively forced Biden to continue the abusive use of Covid emergency powers as a tool for immigration restrictions. As Gorsuch stated in his dissent, “courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency.”
Judicial review cannot by itself resolve the challenge of abusive emergency-declaration practices. As noted in my Dispatch piece, Congress must intervene with measures such as imposing clear time limits on executive-declared emergencies. Still, the judiciary can play a meaningful role in preventing extraordinary emergency powers from becoming a blank check that the president can wield at his discretion.
And while we should not depend on the judiciary alone to police emergency-power abuses, we should also resist the opposite flaw of relying exclusively on Congress. As Gorsuch emphasizes in his compelling concurrence on the tariff case, it is extremely difficult for Congress to rein in delegated authority when courts interpret it too broadly:
When a private agent oversteps, a principal may fix that problem prospectively by withdrawing the agent’s authority. Under our Constitution, the remedy is not so simple. Once this Court reads a doubtful statute as granting the executive branch a given power, that power may prove almost impossible for Congress to retrieve. Any President keen on his own authority (and, again, what President isn’t?) will have a strong incentive to veto legislation aimed at returning the power to Congress. Perhaps Congress can use other tools, including its appropriation authority, to influence how the President exercises his new power. Maybe Congress can sometimes even leverage those tools to induce the President to withhold a veto. But retrieving a lost power is no easy business in our constitutional order. And without doctrines like major questions, our system of separated powers and checks-and-balances threatens to give way to the continual and permanent accretion of power in the hands of one man. That is no recipe for a republic.
That is all the more reason for the judiciary to rigorously enforce statutory and constitutional constraints on the scope of delegated powers – especially when we are talking about sweeping emergency powers that endanger civil liberties, threaten the stability of the economy, and have other potentially massive effects.
If anyone has access to the full text of Gorsuch’s talk at the Tenth Circuit conference, please send it to me, if you can.
NOTE: For those keeping score, I also called for rigorous judicial review of invocations of emergency powers under Biden. See, e.g., here and here.
