Each of these efforts has resulted in litigation, and in each case the administration claims the issues in question are left to virtually unreviewable executive discretion. The president alone supposedly gets to determine whether an emergency exists and (with few or no limitations) what should be done about it. Courts have mostly rejected the argument that the president has the power to define terms such as “invasion.” But they have often been overly deferential to presidential determinations about relevant facts, such as whether an “invasion” (correctly defined) has actually occurred. At least one judge has also embraced the view that these issues are unreviewable “political questions.” It is vital that courts engage in full, nondeferential review of administration invocations of emergency powers. None of the arguments against doing so outweigh the immense dangers of letting the president invoke these powers at will…..
The Trump administration has attempted to make sweeping use of emergency powers in the areas of immigration, trade, and domestic use of the military. In each case, President Donald Trump has tried to use powers legally reserved for extreme exigencies—invasion, war, grave threats to national security—to address essentially normal political challenges. If he is allowed to get away with them, these abuses would set dangerous precedents and gravely threaten civil liberties and the structure of our constitutional system.
Each of these efforts has resulted in litigation, and in each case the administration claims the issues in question are left to virtually unreviewable executive discretion. The president alone supposedly gets to determine whether an emergency exists and (with few or no limitations) what should be done about it. Courts have mostly rejected the argument that the president has the power to define terms such as “invasion.” But they have often been overly deferential to presidential determinations about relevant facts, such as whether an “invasion” (correctly defined) has actually occurred. At least one judge has also embraced the view that these issues are unreviewable “political questions.” It is vital that courts engage in full, nondeferential review of administration invocations of emergency powers. None of the arguments against doing so outweigh the immense dangers of letting the president invoke these powers at will….
Nondeferential judicial review of invocations of emergency powers is an application of the judiciary’s normal role in interpreting the law and applying it to the relevant facts. Moreover, the use of terms denoting extraordinary dangers (such as “invasion,” “rebellion,” or “emergency”) counsels against interpreting them in ways that allow invocation of these powers in normal times. Otherwise, these words become superfluous, and emergency powers turn into blank checks for executive power grabs.
The same point applies to factual deference. Courts routinely assess whether the factual prerequisites for applying a law are present. Emergency powers should not be an exception. Otherwise, the government could get around constitutional and other constraints on its authority simply by engaging in lying and misrepresentation about the facts on the ground.
In litigation over all three of its major invocations of emergency powers—immigration, tariffs, and domestic use of the military—the administration has also invoked the “political questions” doctrine, which holds that some issues are off limits to the judiciary, because they have been left to the political process…. But there is no general principle holding that invocations of emergency powers are exempt from judicial scrutiny….
Some defenders of the administration’s position argue that courts should defer to the executive’s specialized expertise on emergency power issues. But a genuine emergency does not require much expertise to detect. You don’t have to be an expert to understand that Russia’s assault on Ukraine is an “invasion” or that the COVID pandemic was an “emergency.” The very enormity of true emergencies generally makes detection easy.
In rare cases where specialized knowledge is required, courts can take expert testimony and consider scientific evidence, as they routinely do in other situations. Courts also have procedures for considering classified information, when necessary….
