Our national non-emergencies, or A Panegyric to Orwell
“[T]hey were fighting to keep a state of emergency always present as the surest guarantee of authoritarianism.” – George Orwell, 1984
Last fall, the U.S. solicitor general filed a brief in the Supreme Court asserting, with unsettling assurance, that even three decades ago Congress was “presumably” aware “it was unlikely that there will ever be a time when no national emergency exists.”
The case, Feliciano v. Department of Transportation, concerns whether a federal civilian employee who is also a military reservist is entitled to statutorily authorized differential pay (the difference between his military pay and what he would have received in his civilian job) when he is called up during a declared national emergency, even if he’s not being called up in connection with such an emergency. The distinction matters because, as Justice Elena Kagan observed during oral argument, “There are 43 national emergencies now. . . . I mean, this is just a sort of feature of modern life.” Consequently, all of modern life occurs during a national emergency. Indeed, most Americans have lived their entire lives under an emergency declaration.
In the case of Nick Feliciano—an air traffic controller called up as a Coast Guard reservist—whether he gets the pay differential will likely be a matter of statutory interpretation and I venture no opinion as to how the Court should read the provisions at issue. But the government’s confidence that we live (and Congress legislates) under the presumption of an ongoing emergency is an indication of what many Americans may suspect, increasingly, to be true: A “National Emergency” is not the same thing as a national emergency.
In George Orwell’s 1984, “Doublethink” means “the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them.” And, as Orwell had previously observed, “if thought corrupts language, language can also corrupt thought.” So, how should we think about all of these declared national emergencies?
The “National Emergency” regime
With more ease than Mario or Luigi obtaining a magic mushroom, a United States president can unlock numerous powers—137 by one count—simply by declaring the magic words: “X” is a National Emergency. The National Emergencies Act, enacted in the 1970s to rein in presidential emergency authorities littered through nearly 200 years of laws, provides the framework: The president must formally declare a National Emergency and specify which “emergency” authorities he will use to address it. But before the ink on his signature is dry—and with no involvement from Congress—the president has acquired those powers. D+ for effort, Congress; F for result.1I will grant Congress one mitigating excuse. As passed, the National Emergencies Act required that, not later than six months after an emergency was declared, each House must meet to consider a concurrent resolution terminating that declaration. Concurrent resolutions are passed by the House and Senate but do not require the President’s signature. Accordingly, Congress could quickly take back the President’s delegated powers—unlocked by the declaration—whether he liked it or not. But in 1983 the Supreme Court held that all legislative action is subject to the constitutional requirement of presentment to the president. The result was that such veto provisions, which reserved a check for Congress in statutes giving power to the president, were presumptively severed from those statutes, with the delegation remaining. Congress amended the National Emergency Act to allow for the termination of an emergency with a joint resolution, but those must be signed by the president (or garner a super-majority in both houses) rendering them a far less useful option for terminating an emergency the president has declared.
Many of these powers are significant, allowing a president to, among other things, suspend the prohibition on testing chemical and biological weapons on human subjects (50 U.S.C. § 1515); kick people out of their homes (42 U.S.C. § 4625(c)(3)(B)); and, with a few additional findings, shut down radio stations (47 U.S.C. § 606(c)).2Others are more anodyne, such as allowing the Secretary of the Army to waive dental care charges for reserve members. 10 U.S.C. § 1076a(e)(2).
To get a better sense of the National Emergencies Act’s departure from our constitutional system, contrast its scheme with the Constitution’s allocation of war powers. Under Article I, Congress is the body that declares war, raises an army, maintains a navy, calls forth the militia, and provides for the organizing, arming, and disciplining of that force. Once a declaration of war is made, the president then has the operational control of its execution as the Article II commander-in-chief. That’s no small task, but unlike the national emergency framework, Congress pulls the trigger, making the fundamental policy decision as to whether to declare war. The president does what the office is—hopefully—good at; he executes Congress’s decision.
“It’s a beautiful thing, the destruction of words.” — George Orwell, 1984
Not surprisingly, given the statutory incentives, presidents like to declare emergencies. As of this writing, there are 51 declared “National Emergencies” currently in effect. The oldest, entitled “Blocking Iranian Government Property,” dates back to 1979 and presidents have renewed it repeatedly, most recently in November 2024. Six new “National Emergencies” have been declared this year alone: one by former President Joe Biden and five by President Donald Trump. A recent such declaration identifies as the National Emergency the Chinese government’s lack of action to address illegal drugs, which in some cases enter the United States.
And what authority was the president invoking to address that “National Emergency”? A 10% tariff on imports from China. An American who hears that the president declared a national emergency might believe the country to be in a genuine crisis; an American who reads far enough to learn about the proposed response would likely come to the conclusion that the words have lost their meaning.3Interestingly, when President George W. Bush issued a proclamation suspending certain wage requirements for relief workers engaged in Hurricane Katrina recovery operations, his proclamation used different language that hadn’t appeared before or since. It stated: “I find that the conditions caused by Hurricane Katrina constitute a ‘national emergency’ within the meaning of section 3147 of title 40, United States Code.” Proclamation 7924 (Sept. 8, 2025) (emphasis added). Whether President Bush and his staff were attempting—laudably—to mitigate the wordplay required by the National Emergency Act, I do not know. One can take America’s drug problem seriously without labeling it a National Emergency and thereby permitting the president to execute his policy preferences, rather than Congress’s, on a pretext.
A similar National Emergency underpins President Trump’s 25% tariffs on imports from our icy neighbor to the north (that would be Canada), specifically, the “flow of illicit drugs like fentanyl” into the United States. E.O. 14193. But according to U.S. Customs and Border Protection, only 43 pounds of fentanyl was seized at the northern border in 2024, compared with 21,100 pounds seized at the southwest border in the same period. And a mere two days later the president issued an executive order entitled “Progress on the Situation at Our Northern Border,” pausing the tariffs. That was easy. “Oceania was not after all at war with Eurasia. Oceania was at war with Eastasia. Eurasia was an ally.”
To state what you already know, it is bad when a society is unclear as to what its political officers are saying. In his essay “Politics and the English Language,” George Orwell identified “meaningless words” as those that “do not point to any discoverable object but are hardly even expected to do so by the reader.” In political language, he says, “the person who uses them has his own private definition, but allows his hearer to think he means something quite different.” When “National Emergency” is simply a defined term that means something other than its normal sense, it’s hard to conclude we have not rendered the words meaningless.
Former White House Chief of Staff Rahm Emanuel advised: “You never let a serious crisis go to waste. And what I mean by that it’s an opportunity to do things you think you could not do before.” That aptly describes how our emergency-by-declaration scheme works, except that you don’t actually need the serious crisis. There are no doubt margins at which reasonable people would disagree, but Americans know that—whether or not Iran’s 1979 revolution was an emergency in 1979—it is no longer a crisis.4There is, indeed, an entirely separate National Emergency regarding “[t]he actions and policies of the Government of Iran” more generally that was first declared by President Clinton on March 15, 1995, and was continued for yet another year by President Trump just this month. Congress has gathered and voted many, many times since then and our elected representatives can decide for themselves how they want to approach that situation, with Americans weighing in to reflect changed minds or changed circumstances every two years.
Congress cannot depart the field
The Constitution “is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times.” So said the Supreme Court in 1866, when it held that a military trial of a civilian during the Civil War was unconstitutional when courts were functioning.
And that presents a legal problem with this government-by-emergency design, beyond the harm it does to language and political communication. The Constitution vests the legislative power—the power to make laws, weighing priorities and trade-offs—in Congress, not the president. Congress is the representative branch in our tripartite system and the difficulty in building legislation-passing majorities demands a durable popular consensus across multiple constituencies. You need to persuade a lot of people, over several election cycles, to pass a law. That’s a feature, not a bug, in preserving liberty because you can’t escape a federal law by moving to a different city or state and individuals are better able to influence legislators (and hold them accountable) at the local level.
You may have noticed, however, that most people today pay far more attention to presidential elections than to congressional elections. There are surely manifold reasons for this, but one important cause is that, contrary to our constitutional design, the president now wields much of what is rightly considered legislative power. And he didn’t usurp it alone. Congress affirmatively delegated broad policymaking authority to the executive branch, resulting in often significant and destabilizing policy swings every time a new party takes the White House. The president—a unitary actor—need not build the enduring buy-in required for Congress to legislate. The office’s ability to act quickly is an advantage in situations that call for quick and decisive action, but the consequence of rule by men, as opposed to laws, underscores the Framers’ objective in separating legislative power from executive power in the first place. Negotiated, predictable lawmaking is more likely to ensure the liberty of (and, accordingly, the social peace among) diverse citizens living together in a large country.
For that reason, among others, PLF has argued that courts should better police the non-delegation doctrine, which enforces the separation of powers in our constitutional structure, holding that the legislative power vested in Congress by the people cannot then be re-delegated to the president. The Constitution demands Congress make the laws and tells the president to take care that they be faithfully executed. The third branch, the judiciary, looks to see if the president’s actions were consistent with the laws and that the laws themselves comport with the Constitution.
In the non-delegation doctrine’s “one good year” (1935), the Supreme Court did just that, rejecting statutes that delegated to the president the power to make national economic policy with no meaningful guidance or limitations. In the decades that followed, however, the Court found myriad ways to skirt this constitutional-structure-policing role, tolerating “decidedly not demanding standards” from elected lawmakers, typically by adopting narrow readings of facially broad delegations.
I am sympathetic to the judiciary’s reluctance to wade into questions on which the policy-making and policy-executing branches agree, especially those that concern how the government should operate in extraordinary and unpredictable circumstances (genuine emergencies). But the Court must police at least the outer bounds within which the other two branches operate to keep the system functioning. After all, when the Framers drafted the Constitution, they did so with the assumption that it was the structure that would keep us free; the Bill of Rights was only added later, and as a confirmatory measure. It is the Court’s job to try to answer the difficult questions: Can Congress delegate otherwise non-delegable legislative power whenever the president determines there is an emergency? Can it do so preemptively? Can the president supply her own definition of emergency or does some objective definition of that word constrain her?
Even so, however, the courts can’t save us. Upstanding and thoughtful presidents can’t save us, because in our system the people are the ultimate sovereign. We must elect representatives who are able to see beyond the current balance of partisan power and recognize that a negotiated legislative compromise—which may well be imperfect—is preferable to the abdication of policymaking power to one individual who need not accommodate minority views. Telling our representatives to reject short-term policy wins in favor of durable and legitimate laws is on us, and we are failing.
Legislative supremacy, executive immediacy
The Constitution is not a suicide pact. What makes the declaration of National Emergencies so pernicious is the instinct most Americans probably share that the president should have more flexibility to act in a time of a genuine crisis. Few would argue, for example, that a president may not act as commander-in-chief to repel a foreign invasion even if Congress could not meet to declare war. And there is constitutional support for that instinct. Unlike Article I, which vests in Congress only the legislative powers “herein granted,” Article II vests in the president the “executive power” without similar constraint. The scope of that power is (perhaps intentionally) unclear but likely includes at least some ability to act in a crisis when dispatch is necessary. (John Locke called this executive power to act “prerogative.”)
Americans are naturally more willing, then, to let Congress delegate certain short-term policy decisions to the president during such an emergency. Early on in our history, Congress gave President Washington a two-year authority to call forth the militia when the United States was invaded or in imminent danger of invasion. It also allowed him to use the militia to suppress an insurrection in a state, but only upon application of the legislature of the state (or the executive, if the legislature could not convene), and when the laws of the United States were obstructed “by combinations too powerful to be suppressed by the ordinary course of judicial proceedings,” but only if a judge notified the president as such.
But Congress has not provided that type of limited window in which the president can act to preserve Congress’s ability to make its own policy decision. It has not granted the executive branch discretion in carrying out Congress’s laws. It has abdicated its responsibility to represent us, the people, in making hard choices about prioritizing federal resources and balancing order against liberty. It could take that responsibility back, while maintaining the advantage of having an executive who can act swiftly and decisively when necessary, by adding sunset provisions to National Emergency declarations. Providing for the termination of a declared emergency absent congressional action within, say, three legislative days (I’d take three months or three years at this point), gives the president the power to act when Congress cannot convene. But it returns the onus to Congress to decide whether to continue the president’s action. That this is not currently the law reflects our representatives’ aversion to responsibility and accountability. But “Ambition must be made to counteract ambition,” and—alongside voters—the Court is in the position to redirect Congress’s ambition from TV cameras to committee rooms by rejecting delegations that go too far, forcing Congress back to work.
I submit that one cannot overquote Orwell in a post about emergency powers, so I’ll conclude with this: “We know that no one ever seizes power with the intention of relinquishing it. Power is not a means; it is an end.” In an “emergency,” as Orwell well knew, power is often conferred willingly, rather than unilaterally seized. And that’s all the better for the leader who holds it. Adhering to the Constitution’s separation of powers requires us to take it back.
