Government by Emergency Is a Bad Idea

By Rich Lowry

Wednesday, September 03, 2025

 

No matter what dictionary you consult, the definition of “emergency” is never “a chronic situation that the leader of a country would like to address using powers not otherwise available to him.”

 

This, though, is how the Trump administration tends to define the term.

 

Treasury Secretary Scott Bessent says that the administration is considering declaring a housing emergency, which would be its tenth emergency declaration at the national level, as well as the “crime emergency” in Washington, D.C.

 

There is no doubt that the nation is suffering an affordability crisis in housing, although this problem isn’t the result of exigent circumstances. Over time, we have chosen to constrict the supply of housing via a welter of zoning and environmental rules that make it hard to build.

 

Is this a travesty? Yes. Does it crimp the American Dream? Yes. Should it be addressed? Yes, again (although it’s mostly a state and local issue). Is it an emergency? No, not by any common understanding of the term.

 

A national emergency is British troops winning the Battle of Bladensburg and heading toward the White House in 1814.

 

A national emergency is Iranian radicals breaching the U.S. embassy in Tehran and taking 52 U.S. diplomats and citizens hostage in 1979.

 

A national emergency is a pandemic reaching our shores, killing the particularly vulnerable and sickening many millions more in 2020.

 

A good rule of thumb is that a national emergency should be obvious, such that no jesuitical or motivated reasoning is necessary. In other words, if you have to convince people that an emergency exists, it’s a pretty good sign that one doesn’t.

 

An emergency should also, by definition, be rare and of limited duration.

 

Trump isn’t the first president to honor these rules in the breach. As of last January 2024, the International Emergency Economic Powers Act (IEEPA), which Trump used to justify his tariffs, had been used by presidents to declare 69 emergencies, 39 of them ongoing.

 

Surely, few Americans realized that they lived in a country beset by so many simultaneous emergencies. True to form, though, Trump has pushed this power to its max.

 

The problem with ruling by emergency declaration is that it fundamentally distorts our constitutional system; it uses the excuse of an emergency to exercise powers that Congress never intended to grant the presidency for the pursuit of routine policy preferences.

 

This is the issue in the tariffs case. Trump used a nonemergency — a trade deficit that has existed for decades and that Trump has inveighed against most of his adult life — to unlock a power to impose tariffs that doesn’t appear anywhere in IEEPA. The U.S. Court of Appeals, rightly, has balked, and the case is inevitably headed to the Supreme Court.

 

The tariff case underlines the inherent instability of government-by-emergency. If Trump had used more established and limited powers — or, even better, gone to Congress to pass his tariffs — there wouldn’t be a legal cloud around the tariff regime in which he is so personally and politically invested.

 

There will certainly be partisan retaliation. Whatever hesitance a future Democratic president might have had about declaring, say, a climate emergency will be drastically diminished by Trump’s precedent.

 

If it had any institutional self-respect, Congress would go systematically through the statute books and excise all but the very most strict and necessary emergency powers.

 

By and large, the presidency doesn’t need any more discretionary power. And, in a genuine emergency, Congress tends to act. In fact, it tends to be overly hasty and overly eager to embrace fashionable ideas. This is how we got the DHS and the Office of the Director of National Intelligence after September 11, when creating new departments and agencies seemed a necessary response to the threat of terrorism.

 

Regardless, it can’t be that one of the most consequential questions in our carefully constructed constitutional system is whether the president decides to call something an emergency or not.