Daniel A. Farber

Volume 71, Issue 5, 1143-1176

President Trump has used emergency powers to achieve key parts of his policy agenda, exemplified by his travel ban, funding for the border wall, and tariffs on many imports. He has also declared the 2020 coronavirus pandemic a national emergency, but has taken relatively little action under this declaration to date. This Essay examines how the Administration has invoked emergency powers in these and other settings, along with the responses of the courts. This Essay also considers how these actions could be used as precedents by future Presidents, such as declaring a climate change emergency. Finally, this Essay discusses the risks of normalizing the use of emergency powers, along with the forces that may impel Presidents in that direction. Although overuse of emergency powers is the problem that has received most attention, Trump’s response to the coronavirus illustrates the possibility for abusing discretion in the opposite direction. The discretion inherent in emergency powers may sometimes prevent needed government actions when taking them would be politically unpalatable to the President. Thus, whether a power is exercised or not, reposing unlimited discretion in the President comes with serious risks as well as possible benefits.