Emergency Powers and Constitutional Foundations

Controversy over President Donald Trump’s tariffs raises the question of rule by emergency power. In triggering the International Emergency Economic Powers Act of 1977 (IEEPA), President Trump declared a national emergency “posed by the large and persistent trade deficit that is driven by the absence of reciprocity in our trade relationships and other harmful policies like currency manipulation and exorbitant value-added taxes (VAT) perpetuated by other countries.” As Robert Delahunty shows, once a President issues the declaration, IEEPA gives him vast authority to block, regulate, and control foreign economic transactions that could easily include tariffs.

But the difficult challenge for Trump’s tariff order is whether the trade deficit qualifies as a national emergency. There is little doubt that sanctions against or in favor of another country in response to a specific event would fall under IEEPA. In reviewing such decisions, the courts have held a highly deferential attitude to the executive’s role in foreign affairs. In Dames & Moore v. Regan (1981), the Supreme Court upheld the use of IEEPA to facilitate the execution of the Iranian Hostages Agreement even though the statute did not specifically grant the President the power he claimed (to lift court judgments against the Iranian government and transfer all Iranian government financial assets to an international tribunal). Under this precedent, President Trump no doubt would survive judicial scrutiny over tariffs aimed solely at a specific nation, such as China, over the threat it poses to our national security.

A President invoking a national emergency over trade imbalances that started at least since the time of Richard Nixon may stretch IEEPA beyond its breaking point. If a trade deficit amounts to a national emergency, progressives will claim, when they regain the presidency, that climate change presents an existential threat that justifies wide-ranging emergency measures. The answer to this question goes beyond just tariffs. Trump does not limit his reliance on emergency powers solely to IEEPA, but also has advanced his immigration agenda on a declaration of an invasion that justifies the use of the U.S. Armed Forces to patrol the border, detain illegal aliens, and deport them. One of the major legal attacks on Trump’s immigration agenda, the use of the Alien Enemies Act to deport alleged members of the Venezuelan Tren del Aragua gang, calls on courts to reject the idea that the United States is at war or under invasion.

The deeper question behind this is whether President Trump must live within the definition of a national emergency contained within IEEPA and other statutes or whether he would seek an emergency power from the Constitution itself. To this point, Trump appears to claim authority only within the context of existing statutes – he has founded his tariffs on the powers granted in IEEPA, for example, and his power to deport the Venezuelans under the Alien Enemies Act. He has yet to claim power under or outside the Constitution. If courts were to strike down his IEEPA or Alien Enemies Act claims, however, Trump may well consider whether he should resort to a broader, inherent emergency authority. Likewise, if Congress fails to raise the debt ceiling within sufficient time to prevent a governmental default, Trump and his advisers might contemplate extra-legal emergency action to avoid a global financial crisis. In that case, he and his advisors could benefit from understanding two different strands of American political thought about emergencies, one represented by Thomas Jefferson, the other by Abraham Lincoln.

Jefferson famously held a “strict construction” approach to the Constitution that narrowly read the powers delegated to the federal government. When faced with an emergency, Jefferson would find no power to respond to necessity in the Presidency or the federal government, but outside the Constitution entirely. This was made clear in the 1803 Louisiana Purchase—perhaps Jefferson’s greatest act as chief executive. Even though the Louisiana Purchase avoided war with France and Spain, and doubled the size of the nation, Jefferson believed it had no constitutional authorization. He held the idiosyncratic view that the Constitution permitted the admission of new states only from territory held by the United States in 1789. The territory governed by the Northwest Ordinance, which gave rise to Midwestern states such as Ohio, could still become states. But territory acquired after the Constitution would require a constitutional amendment to join the Union as states; Jefferson even drafted two that would have approved the Louisiana Purchase. When Jefferson learned that Napoleon was thinking of backing out of the deal, he thought speed was superior to deliberation and had Congress quickly approve the deal. In a letter to a senator, Jefferson compared himself to a guardian acting in the best interests of his ward. He had to seize the opportunity “which so much advances the good of the country.” Unforeseen circumstances required him to exceed his legal powers to protect the greater good. Jefferson looked for ultimate approval not from the Constitution, but from the people through their representatives in Congress.

Jefferson provided a more complete defense of the prerogative two years after he left office. In an 1810 letter, he asked whether “circumstances do not sometimes occur, which make it a duty in officers of high trust, to assume authorities beyond the law.”  Jefferson found the question “easy” in principle, though “embarrassing in practice”:

A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.

Presidents could only invoke this prerogative, Jefferson believed, only in moments of real crisis. But when “consequences are trifling, and time allowed for a legal course,” he maintained, “overleaping the law” was worse than “a strict adherence to its imperfect provisions.” If an executive misjudged the circumstances, he deserved to be judged harshly. “It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake.” Jefferson trusted that his fellow Americans would “put themselves into his situation” and judge his decisions based on what he knew at the time. I and other scholars have observed that Jefferson drew these ideas almost directly from John Locke’s discussion of the executive prerogative.

Lincoln, too, considered the possibility that preserving the Union could justify the exercise of extra-constitutional powers. In 1864, he asked in a letter: “Was it possible to lose the nation, and yet preserve the constitution?” Preserving the nation had to come first, for without the nation, there could be no Constitution. “I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.” To Lincoln, the law of necessity applied equally to the nation and the individual. “By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb.”

But Lincoln ultimately rejected Jefferson’s idea that the President held an emergency authority outside the Constitution. Responding to a dire threat to the nation’s security, he relied on his power as Commander in Chief to give him control over decisions ranging from tactics and strategy to Reconstruction policy. Lincoln believed his constitutional duty to execute the laws, his role as chief executive, and his presidential oath gave him the authority to wage war against those who sought to secede. “[M]y oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government—that nation—of which that constitution was the organic law.” While Lincoln entertained the question of the prerogative, he refused to believe that the Constitution was so defective as to lack the means for its self-preservation.

Lincoln found the source of the nation’s right of self-preservation in the Executive Power Clause. It allowed Lincoln to respond to secession with military force: without Congress, he raised an army, invaded and blockaded the South, imposed an occupation government of recaptured territory, and suspended the writ of habeas corpus. Lincoln consistently maintained that the power to handle this most dire threat to the nation’s security rested within the Constitution’s war powers.

Lincoln first exercised this authority to decide that secession was unconstitutional and could be stopped by military force. Today, we assume Lincoln was correct, but the question of constitutional exit goes unanswered in the constitutional text and would not be resolved by the Supreme Court until after the Civil War. His predecessor, James Buchanan, had announced that secession was illegal but that he lacked the constitutional authority to stop it. Lincoln, however, immediately concluded that the Confederate States were effectively blocking the proper operation of the constitutional system and refusing to accept the results of the ballot box. They had seceded before Lincoln had even taken the oath of office, not to mention before the new Republican Congress had passed any new restrictions on slavery. In his First Inaugural Address, Lincoln restated his campaign promise to leave slavery untouched in the Southern states, which he considered a matter of their own “domestic institutions.” He promised to execute the laws passed to enforce the Fugitive Slave Clause, even if he disagreed with them, and to continue to recognize “the institution of slavery in the States where it exists.” But the South had to accept that the Union was perpetual. It preexisted the Constitution and the Articles of Confederation. According to Lincoln, no state could ever secede; therefore, the Southern states remained part of the nation, and “the Union [was] unbroken.”

The President’s duty to enforce federal law became one of Lincoln’s central constitutional powers to stop secession. Lincoln relied on something of a fiction: he maintained that secession justified a swift presidential response because the southern states impeded his execution of the laws. He consistently claimed that a conspiracy of individuals, not the states themselves, prevented the execution of the laws. The Constitution required the use of force, if necessary, to see “that the laws of the Union be faithfully executed in all the States.”  The Constitution gave Lincoln no choice but to put down the rebellion. “You have no oath registered in Heaven to destroy the government,” Lincoln told the South, “while I shall have the most solemn one to ‘preserve, protect and defend’ it.”

No decision better illustrates Lincoln’s view of the Presidency than Emancipation. Lincoln freed the slaves not under a claim of prerogative—even though it ran squarely against Dred Scott v. Sandford—but under his war powers as Commander in Chief. Whether the federal government could abolish slavery remained unanswered at the time. Lincoln had even campaigned on the plank that slavery was a matter of state law and could not be touched where it already existed. It was unclear whether the United States had the right as a belligerent, under the laws of war, to free slaves. A nation at war generally had the right to seize enemy property when necessary to achieve its military goals, but it also could not, as an occupying power, simply take all property held by private citizens.

As the cost of the war rose higher, Northern demands for an end to slavery grew louder. By July 1862, Lincoln decided to free the slaves, drafted an order, and notified his cabinet. Antietam provided Lincoln with the military victory he needed to provide cover for the proclamation. On September 22, 1862, five days after the battle, Lincoln issued the Emancipation Proclamation under his sole constitutional powers. Lincoln remained clear that the war was not about slavery, but “for the object of practically restoring the constitutional relation between” the United States and the rebel states. Nevertheless, his proclamation freed 2.9 million slaves, 74% of all slaves in the United States and 82% of the slaves in the Confederacy. On January 1, 1863, Lincoln issued the final version of the proclamation, “by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States.” President Lincoln justified the Emancipation Proclamation “as a fit and necessary war measure for suppressing said rebellion.”

Lincoln’s invocation of presidential power to justify the Emancipation Proclamation also carried built-in limits. As a war measure, he believed, the proclamation could not free any slaves in the loyal states nor remake the Southern economic and political order. Lincoln even thought that the Emancipation Proclamation could not permanently free the slaves, but could only remain in effect while necessary to defeat the enemy. Shortly before issuing the preliminary proclamation, Lincoln wrote to Republican newspaper editor Horace Greeley, and through him to a broad readership, that his goal was to restore “the Union as it was.” Emancipation would stay in effect only as long as necessary to achieve victory. “My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery,” Lincoln wrote. “If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that.”

Lincoln clarified that the Commander in Chief Clause allows measures based on military necessity that would not be legal in peacetime. “I think the constitution invests its commander-in-chief, with the law of war, in time of war,” he wrote. Emancipation both denied the South a vital resource and brought black soldiers into the Union war effort. Lincoln claimed that Union generals “believe the emancipation policy, and the use of colored troops, constitute the heaviest blow yet dealt to the rebellion.” Lincoln understood that as a war measure, emancipation would end with the war’s end. In 1864, Lincoln pressed for an end to slavery that would survive the war with the Thirteenth Amendment.

Lincoln domesticated Jefferson’s prerogative. Rather than claim an extra-constitutional power, Lincoln located the President’s ability to respond to the greatest threat to the nation’s existence in his executive and Commander in Chief powers and his duty to execute the laws. Presidents ever after have followed Lincoln rather than Jefferson. No President has justified any action on a claim of an extra-constitutional prerogative. If Trump continues to rely on emergency powers to justify tariffs, border security, or deportations, he will still have to find a source of power within the written laws, not outside them.

John Yoo is a senior research fellow at the Civitas Institute, and a distinguished visiting professor at the School of Civic Leadership at the University of Texas at Austin. He is also the Emanuel Heller Professor of Law at the University of California at Berkeley where he supervises the Public Law and Policy Program among other programs at Berkeley Law. Concurrently, he is a nonresident senior fellow at the American Enterprise Institute.