In this episode of “It’s the Law,” UC Berkeley School of Law Dean Erwin Chemerinsky breaks down the answer and explains that the Constitution is meant to limit what the government can do, and those limits apply to emergencies as well…

A week ago, President Donald Trump and members of his cabinet announced a takeover of law enforcement functions in Washington, D.C. using three tools: deployment of elements of the D.C. National Guard (and National Guard troops from several cooperating states as well), invocation of a statutory emergency power to requisition the services of the city’s Metropolitan Police Department, and a surge of federal law enforcement to the city’s streets, including Department of Homeland Security, Federal Bureau of Investigation, and other federal agents. Over the past week, 800 D.C. National Guardsmen have been mobilized for operations in the city, with hundreds more state National Guardsmen on their way, and 500 newly deployed immigration and other federal agents are patrolling the streets or have set up checkpoints. At the same time, the district and the White House have engaged in a power struggle over control of the city’s police department…

National emergencies are critical tools for addressing sudden and unforeseen events — often situations that require an immediate, decisive response to address. In our constitutional system, a national emergency declaration allows the president to temporarily use certain authorities that Congress has previously approved. Congress delegated this authority to the president because it sometimes cannot act quickly enough to respond to certain kinds of situations, such as natural disasters and public health emergencies. Upon declaring a national emergency, over 130 special authorities — such as the authority to shut down communications facilities or draw down equipment from national defense stockpiles— are immediately unlocked that enable a president to intervene in ways that are unavailable to them outside of an emergency declaration.

If you want to learn about economic sanctions, which are the most common of the president’s emergency powers, and one non-conflict way to exert pressure on a foreign power, check out New Hampshire Public Radio’s Civics 101 podcast episode on emergency powers. You’ll also learn about certain military powers the president has under an emergency declaration. Emergency powers are designed for when plans need to change, and fast, by allowing the president to override certain Constitutional provisions in a time of crisis. But in the last century, national emergencies have gone from a rarity to a tool that presidents use dozens of times while in office. We talk about what a president can (and cannot) do during a state of emergency, and how Congress has tried to put checks on that power, with help from Kim Lane Scheppele, author of Law in a Time of Emergency…

Emergency powers have existed in countries around the world for centuries. Their purpose is simple: to temporarily enhance executive power during unexpected crises that are moving too fast for Congress to respond. The Brennan Center’s original research cataloged 123 statutory authorities that become available to the president when he declares a national emergency. Many are measured and sensible, but others seem like the stuff of authoritarian regimes: giving the president the power to take over domestic communications, seize Americans’ bank accounts, and deploy U.S. troops to any foreign country. Given how broad these powers are, it is critical to have adequate safeguards in place to prevent abuse…

The terrorist attacks of September 11, 2001, and the ensuing “war on terrorism” brought to center stage issues that have previously lurked in a dark corner at the edge of the legal universe, such as how a constitutional regime should respond to violent challenges. This question is as ancient as the Roman Republic and as new as the realities wrought by the terrorist attacks of September 11th. It has faced nations embroiled in wars against external enemies, as well as those responding to violent movements within their own borders. It has haunted countries powerful and weak, rich and poor. The dilemma confronting a constitutional democracy having to respond to emergencies has been famously captured by Abraham Lincoln’s rhetorical question: “[A]re all the laws but one to go unexecuted, and the Government itself go to pieces, lest that one be violated?” Yet, prior to the attacks in New York, Washington, and Pennsylvania, violent crises and emergencies and their implications for legal systems had not attracted much attention in legal scholarship…

Martial law has long been mired in confusion in the United States, but that has not always stopped state and federal officials from declaring it. Indeed, the Brennan Center has identified 68 declarations of martial law across U.S. history. Our research into these events is presented in the appendix below. It accompanies our report on martial law, which delves into the history of the concept and the legal principles that govern it.

We have organized the appendix by category based on the type of event that precipitated martial law. For each entry, we have included key information about the declaration such as the date, duration, location, related litigation, and who issued it. Unfortunately, the historical use of martial law in the United States is poorly documented and under-studied. For this reason, some of the entries in the appendix are incomplete. We have also chosen to exclude any event where there is any doubt as to whether martial law was declared…

Executive emergency powers are tantalizingly effective. They allow presidents to bypass congressional gridlock, do away with procedural safeguards, and act decisively with minimal oversight. But there is a risk that these exceptional powers may become a norm of domestic governance. This Note theorizes a problem of “partisan emergencies,” declared by a president despite significant disagreement about the factual existence of an emergency. One example is President Trump’s declaration of an emergency after Congress refused to fund his border wall. Other examples stem from Democrats calling on President Biden to declare an emergency to address issues like climate change and reproductive health. Congress, initially relying on a legislative veto to terminate such declarations, must now muster a supermajority if it disagrees with them. At the heart of the scheme is the National Emergencies Act, outlining how a president can declare a “national emergency” and what powers he unlocks by doing so without imposing a definition of the term. This Note surveys the judiciary’s recent treatment of emergency powers, positing that while courts are willing to engage in means-ends review about how an executive uses emergency powers, they are not willing to engage in the factual question of whether an emergency exists at all. This Note then argues that the judiciary must be willing to engage with this question to effectively rein in dubious invocations of emergency power…

This article analyzes the effectiveness of the right to seek asylum in the Hungarian legal system in the most recent emergency contexts. First, the legislative changes adopted following the so-called “migration crisis of 2015” are outlined, whereby the aim was to prevent access to the right to asylum. The measures introduced during the Covid-19 pandemic followed such a restrictive path. The article also assesses the conformity of the new measures with European and international law. To conclude, the armed conflict in Ukraine led to the coexistence of multiple emergency regimes, in which there is little room left to the effective exercise of the right to seek asylum…

This video lecture for Professor Dru Stevenson’s Administrative Law course (and Statutory Interpretation-Legislation) discusses the evolving Major Questions Doctrine and how it was applied and explained in Biden v. Nebraska, 143 S.Ct. 2355 (2023), in which the U.S. Supreme Court invalidated the President's original student loan forgiveness program, which had relied on the HEROES Act of 2003, which allowed the Secretary of Education to “waive or modify” student loan provisions during a national emergency. The Court’s holding was that this emergency-related authority did not extend to cancelling hundreds of billions in student loan principal…

The fight against COVID-19 has led many countries, including liberal democracies, to take extraordinary measures that would undoubtedly be constitutionally problematic in normal times. Around the world, we have witnessed entire countries being locked-down, with mass surveillance of cellphones, suspended religious services, restricted travel, and military-enforced curfews. While these measures are widely supported by the publics in many countries, some scholars and activists have raised the alarm that these might lead to a deterioration of civil liberties and constitutional democracy long-term. Specifically, they worry that many leaders might not easily give up their newfound powers, and that civil liberty restrictions will become a new normal.

While it is of course too soon to explore the long-term consequences of COVID-19 for constitutional democracy, we believe that it is helpful to understand the legal bases for the extraordinary powers that governments are currently exercising. In this brief Essay, we find that, while the details of course vary from country to country, there are three broad legal bases for the COVID-19 measures: (1) the declaration of a state of emergency under the constitution, (2) the use of existing legislation dealing with public health or national disasters, and (3) the passing of new emergency legislation. In the remainder of this Essay, we describe these three broad approaches. In a follow-up Essay, we will evaluate their respective risks to civil liberties and the rule of law…

In States of Emergencies: Part I, the authors described how the legal bases for countries’ coronavirus responses typically fall into three broad categories. First, some countries have declared a state of emergency under their constitutions, which allow them to take special measures, including restrictions of civil liberties, for the duration of the emergency. Second, some countries have relied on existing legislation relating to communicable diseases, health, and/or national disasters and used these laws as the basis for their COVID-19 response. Third, some countries have (also) passed brand new legislation that grant the governments new powers to respond to COVID-19.

When governments are granted powers to restrict rights, there is always a risk of abuse. To minimize these risks, three broad principles are important: (1) providing for legislative and judicial oversight of the executive, (2) limiting exceptional measures to those strictly necessary, and (3) ensuring that such powers endure only for the duration of the outbreak…

Three significant questions behind President Trump’s declaration of a national emergency during his first term to build a border wall have a single, surprising answer: Why did Congress in the National Emergencies Act (NEA) of 1976 delegate such broad and vague power to the president to declare national emergencies? Why wasn’t Congress more specific in defining the circumstances that constitute a national emergency? And why are the courts now going to have the final word in determining whether the president has properly invoked or abused the power the NEA gives him?

The answer to all these questions lies in a 1983 Supreme Court decision, INS v. Chadha. That decision, rightly or wrongly, decimated the policy scheme Congress had created for overseeing the president’s declaration of emergency powers—and nearly 200 other federal statutes in which Congress since the 1930s had created a similar scheme…

Emergency has assumed central importance in the United States legal system. In 2019, President Trump declared an emergency at the southern border after Congress declined to fund his wall; critics responded with legal challenges and proposed reforms to the statute he invoked, the National Emergencies Act (NEA). Emergency powers have also played a key role during the COVID-19 pandemic. This Article conducts a comprehensive survey of emergency powers in the United States. It shows that the NEA is only one among many grants of authority presidents can call upon in a crisis, alongside other emergency schemes, specially delegated statutory power, nonemergency statutes, and inherent executive authority. It argues that the United States' fragmented emergency powers scheme raises not only well-known risks of overreach presidents abusing emergency authority to gain power or erode democracy, but also less appreciated risks of underreach where presidents are unwilling or unable to deal adequately with a crisis…

This study examines the exercise of presidential powers in emergency situations within the framework of Indonesia’s 1945 Constitution, focusing on constitutional limits and legal guarantees. Using a qualitative approach with a normative juridical methodology, the research analyzes constitutional provisions, statutory regulations, and judicial practices to evaluate the effectiveness of Indonesia's legal framework in balancing crisis management with the preservation of democratic principles. The findings reveal ambiguities in emergency criteria, gaps in accountability mechanisms, and concerns over proportionality in restricting fundamental rights. Comparative insights and recommendations are provided to enhance legal clarity, strengthen oversight, and safeguard constitutional democracy during emergencies…

In February 2019, President Donald Trump declared a national emergency to secure funding that Congress had expressly denied for the construction of a wall along the southern border. Before that declaration, most Americans were unaware that a vast set of laws gives the president greatly enhanced powers during emergencies. The Brennan Center, building on previous search, has (as of July 2025) identified 137 statutory powers that may become available to the president when he declares a national emergency, including the power President Trump invoked to help build the wall (10 U.S.C. 2808 (a)). An additional 13 statutory powers become available when a national emergency is declared by Congress…

In the immediate wake of the assassination of President Abraham Lincoln and just ten days after newly sworn-in President Andrew Johnson issued an order calling for a military trial of the alleged conspirators in Lincoln’s killing, the government brought the accused before a tribunal composed of nine military officers at the Old Arsenal Penitentiary in Washington, D.C. The President’s order empowered the commission to set its own rules of procedure. By the ensuing rules, a majority vote of the officers could sustain a guilty verdict, a two-thirds majority vote could sustain a death sentence, and the only avenue for appeal was to seek a pardon from the President…

This Article examines the ways in which various constitutional structures grant and constrain emergency powers. Specifically, the Article examines how a country defines the emergency powers of its chief executive and whether that definition is formal or informal. The Article also explores what effect the distinction between formal and informal powers has on a constitutional system’s ability to prevent a devolution of constitutional norms. The Article undertakes this inquiry by examining the use of emergency powers in different countries and at different times. It examines the constitutions of Germany’s Weimar Republic, Charles de Gaulle’s Fifth French Republic, and Indira Gandhi’s rule in India, as well as specific examples from United States history…

What can the president do in a national emergency? What limits what the president can do? What authorizes the president to do all those things he can do in a national emergency? Is the president abusing, misusing, using appropriately, or under-using emergency powers during the coronavirus crisis? And what are the logical end points for how far this could go? For this bonus edition, Benjamin Wittes got on the phone with Steve Vladeck to work through these questions and talk about all things presidential emergency powers.

Not even a year into his second term, President Trump has (as of 11 August 2025) declared 11 national emergencies, exceeding every president’s single-term total except for his own previous record of 13 national emergency declarations.

An embedded chart in this report depicts National emergencies declared annually by U.S. Presidents, from 1979 to 2025 (as of 11 August 2025)…