Emergency powers: Presidents unleashed? - The Miller Center
Title: Emergency powers: Presidents unleashed?
Source: The Miller Center (a nonpartisan institution at the University of Virginia that explores how the American presidency meets national priorities and engages scholars with leading citizens to help solve major problems)
Date of Publication: April 2026 (details found here, here, and below.
On April 10, 2026, the Miller Center convened a major conference on U.S. presidential emergency powers as part of its Presidency Project: Toward a Responsible and Effective Executive. The event followed the U.S. Supreme Court’s February 20, 2026 decision rejecting President Trump’s use of emergency authority to regulate tariffs, a ruling that sharpened public attention on how far presidents may go when invoking crisis powers. Against the backdrop of nine new national emergencies declared in the first year of Trump’s second term, the conference examined how emergency powers have evolved, how they are constrained, and why their growing use poses a serious challenge to American constitutional governance.
Moderated by Miller Center Director and CEO William Antholis, the discussion brought together scholars and practitioners with deep expertise in the presidency, Congress, national security, and constitutional reform. Participants included Soren Dayton of the Foundation for American Innovation, William Galston of Brookings, Matthew Glassman of Georgetown’s Government Affairs Institute, Elizabeth Goitein of the Brennan Center, and Miller Center scholars Sidney Milkis and Russell Riley. The panel’s strength was its combination of historical depth and institutional realism: it treated emergency powers not only as a legal question, but as a symptom of deeper dysfunction in the relationship between the presidency, Congress, the courts, and public trust.
The discussion began by placing emergency powers in historical perspective. Riley emphasized that the early republic faced grave threats without immediately abandoning constitutional regular order, using the catastrophic 1791 defeat at the Wabash River as a test case for evaluating what should count as a true emergency. Milkis then traced the rise of the modern presidency from Franklin Roosevelt forward, arguing that executive power shifted from episodic expansions during crisis to a more permanent, institutionalized feature of American politics. The emergence of the national security state, the administrative state, and the president as the routine “first mover” in politics fundamentally altered the constitutional balance.
The panel gave particular attention to the post-Watergate reform era. Dayton explained how Congress attempted to place guardrails on presidential power through statutes such as the War Powers Resolution, the National Emergencies Act, the Arms Export Control Act, and the International Emergency Economic Powers Act. Many of these statutes originally relied on legislative veto mechanisms that gave Congress a practical way to terminate or block executive action. But the Supreme Court’s 1983 decision in INS v. Chadha weakened that settlement, leaving Congress dependent on legislation that is subject to presidential veto and therefore often requires a politically unrealistic supermajority to override.
Goitein underscored how the National Emergencies Act has become largely ineffective as a constraint. Its safeguards, periodic congressional review, annual renewal requirements, and reporting obligations, have often been ignored, routinized, or reduced to paperwork. Several national emergencies remain in effect for decades, including those tied to the Iran hostage crisis and 9/11. Outside the IEEPA sanctions context, emergency declarations were historically rare, but recent presidents have increasingly used emergency authorities to pursue contested domestic policy objectives, including border-wall funding, student-loan cancellation, and tariffs.
The conference also examined the U.S. Congress’s role in this imbalance. Glassman argued that Congress is not simply an obstacle to presidential action; it is a positive constitutional good because it provides representation, deliberation, and public accountability that no president can replicate. Galston added that Congress has repeatedly transferred authority to the executive and then failed to reclaim it. Polarization, narrow majorities, party discipline, and the habit of campaigning against Congress have made the institution less capable of performing its core constitutional functions.
The Supreme Court’s recent emergency-powers ruling formed a central reference point. The panelists noted that the Court did not directly decide whether the asserted emergency behind the tariffs was genuine. Instead, it asked whether IEEPA clearly authorized the president’s action. Chief Justice Roberts’s reliance on Justice Robert Jackson’s warning that “emergency powers would tend to kindle emergencies” was treated as especially important because it signals that courts may scrutinize emergency-based claims more carefully when they threaten to displace Congress. Justice Gorsuch’s concurrence also drew attention for emphasizing the constitutional value of legislative deliberation and the dangers of broad executive lawmaking.
For ISSE, this conference is directly relevant. It shows how emergency powers can migrate from rare crisis tools into routine instruments of governance. The panel connects the expansion of executive emergency authority to congressional dysfunction, judicial doctrine, the post-9/11 security state, party polarization, and declining public trust. Most importantly, it reinforces a central ISSE concern: the danger is not only that presidents may misuse emergency powers in moments of genuine crisis, but that emergency governance can become a standing substitute for democratic lawmaking.
