“911”, What’s your emergency, Mr. Trump?

On Day 1 of his second administration, President Trump signed an order declaring a national energy emergency. It was to be the start of a pattern that he has used, to great effectiveness, to centralize his power.

Trump declared more emergencies in the first 100 days of his second regime than any other president in the same period. A declaration of a national emergency unlocks a menu of 150 statutory powers that are available to the chief executive.

The National Emergencies Act (NEA) grants presidents extraordinary powers in response to what they consider “unusual and extraordinary threats.” Under the NEA and related emergency provisions of other legislation, the chief executive and his agencies can access funds and act without congressional authorization to address the emergency. However:

” Emergency powers are designed to let a president respond swiftly to sudden, unforeseen crises that Congress cannot act quickly or flexibly enough to address. Presidents can rely on these powers to create temporary fixes until the crisis passes or Congress has time to act.” (Emphasis added) - E. Goitein, Brennan Center for Justice

It’s unlikely there will come a time in Trump’s second presidency when he’ll admit to a crisis passing. At least for the next year, there’s even less likelihood that the Republican Congress will challenge the president on his questionable emergencies or act to solve them itself.

According to the Brennan Center for Justice, “presidents declared about seven national emergencies per four-year term” since Reagan was first elected in 1981. Trump has issued nine national emergency orders and one “crime emergency” for Washington (a federal city).

The orders have covered everything from sanctioning the International Criminal Court over its issuance of arrest warrants for Israeli Prime Minister Netanyahu to designating drug cartels as foreign terrorist organizations. Through a declared emergency, the president has attempted to coerce Brazil into dropping the prosecution of its former populist president for attempting a coup after he lost to its current president, Luiz Inacio Lula da Silva, in the last election.

Trump’s declaration of an energy emergency was specious. It came at a time when America was pumping and exporting oil and gas, and generating clean energy, at historic levels.

Trump is using his southern border emergency to militarize the border and forcefully implement immigration laws. The president has used both drugs and a trade imbalance as the driving forces behind tariffs. Trump used emergency declarations to push his agenda during his first term as well, including to fund his border wall after Congress refused to do so.

Both the frequency and the topics of Trump’s emergency declarations break with history (there’s hardly any surprise there). Previous declarations have followed the outbreak of the COVID-19 pandemic and the 9/11 attacks. Emergency declarations have also been directed at North Korea (2008) and South Africa (1985) over apartheid.

The difference between the president and his predecessors in declaring a national emergency is basically a matter of propriety.

Mr. Trump chooses to use emergency declarations because they’re very hard to overturn. The law doesn’t define what constitutes an emergency. Even though many legal scholars consider Mr. Trump’s “concoction” of declarations a blatant power grab and an abuse of power, the courts are loath to overturn NEA orders in general (not just in Trump’s case) because of their very nature. Who, more than a president, would know when the nation is facing an emergency?

Trump’s energy emergency declaration has been the basis for his gutting as many environmental and clean energy programs as he can – as fast as he can by using the energy emergency declaration in conjunction with executive orders, including: Unleashing American Energy (EO 14154); Protecting American Energy from State Overreach (EO 14260); and, Strengthening the Reliability and Security of the United States Electric Grid (EO 14262)

Responding to the president’s orders, EPA Administrator Lee Zeldin announced in March that the agency would be rolling back 31 energy and climate-related regulations in an effort to speed up the extraction and deployment of fossil fuels – America’s “trad” power source.

“Today is the greatest day of deregulation our nation has seen. We are driving a dagger straight into the heart of the climate change religion to drive down the cost of living for American families, unleash American energy, bring auto jobs back to the US, and more.” - Lee Zeldin, Administrator EPA

In May, the Department of Energy issued two orders “directing a natural gas-fired power plant in Pennsylvania and a coal-fired power plant in Michigan, respectively, to stay online, just days before their planned retirement dates.” Unsurprisingly, nearly every presidential and agency order has been challenged in the courts.

It turns out that the president isn’t the only one using “emergencies” as a reason to act. The US Supreme Court (SCOTUS) has taken up its use of the emergency docket – colloquially known as the shadow docket. The shadow docket allows the high court “to hear emergency applications, which typically involve requests that the Court temporarily lift lower court orders.”

The emergency docket has traditionally been used to address urgent requests, such as stays of execution or cases where irreparable harm will occur if the court doesn’t step in – at least temporarily. An emergency docket decision is very different from how it handles other cases.

Shadow docket decisions are distinguished from the merits docket by “limited briefing, no oral argument, and rulings with little or no analysis of the court’s reasoning” (shadow docket tracker here). The court is using the docket at a record rate.

“In its first 20 weeks, the second Trump administration made as many shadow docket applications — 19 — that the Biden administration made over four years.” In their combined 16 years in office, Presidents Bush and Obama made only eight requests for an emergency ruling. President Trump prevailed in most of the 19 requests. The six conservative justices on the high court continue to favor this president.

A New York Times survey of federal judges found discontent with the president’s shadow docket applications and the willingness of SCOTUS to approve them. The decisions have long-ranging consequences despite being (technically) temporary. They permit the president to dismantle the federal workforce, impound federal funds, and deport tens of thousands of immigrants.

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