Justice Neil Gorsuch recently told a fireside chat at the Tenth Circuit conference that the overuse of emergency powers is undermining democratic governance. He argued that power has migrated from the states to the federal government, and then through emergency legislation to the executive branch, a trend he called bad for democracy in the long term. The Reason article's author agrees, warning that emergency powers meant for genuine crises have become a blank check for presidents.
According to the author, presidents of both parties have abused these powers, with Donald Trump's second term singled out as particularly egregious. The Supreme Court has pushed back in several cases, including challenges to Trump's IEEPA tariffs, the Illinois National Guard case, Biden's student-loan forgiveness plan, and the Alien Enemies Act deportation case. But the author notes that in each of those cases, the Court avoided ruling on whether a real emergency or invasion existed, leaving unclear how much deference courts will give to executive factual claims.
Gorsuch himself dissented in a 2022 case involving Covid-era immigration restrictions, arguing that courts should not keep administrative edicts in force after the emergency they were designed for has passed. The author argues that judicial review alone cannot solve the problem and that Congress should impose strict time limits on emergency declarations. At the same time, the author echoes Gorsuch's warning that once courts interpret a statute broadly to grant the executive power, Congress may find it nearly impossible to reclaim that authority.