By Douglas V. Gibbs
Critics contend Trump’s declaration of emergencies to bypass Congress on various policy issues represents an unconstitutional abuse of emergency powers, designed to circumvent normal constitutional processes and legislative oversight.
President Trump’s actions with emergency powers represents not an abuse of power but a faithful execution of the laws as written by Congress. The Constitution vests in the President the authority to “take Care that the Laws be faithfully executed,” and this duty necessarily includes the implementation of statutory provisions that grant specific powers during declared emergencies. When Congress provides the President with emergency powers, his use of those powers is not a violation of the Constitution but a fulfillment of his constitutional obligation to execute the law as written.
Allegations of Unconstitutional Power Grabs
Democrats contend that Trump’s declaration of emergencies to bypass Congress on various policy issues represents an unconstitutional abuse of emergency powers designed to circumvent normal constitutional processes and legislative oversight. They argue that by declaring emergencies to advance policy goals that Congress has rejected, Trump is effectively rewriting the Constitution and undermining the system of checks and balances. This approach, they claim, represents a dangerous expansion of executive authority that threatens the constitutional order.
The Democratic position frames these emergency declarations as violations of the principle that the President must work within the constitutional system of separated powers. From their perspective, Trump’s use of emergency powers represents not a legitimate execution of congressional statutes but an unconstitutional attempt to rule by fiat when Congress refuses to enact his preferred policies.
The Constitutional Reality: No Asterisks in the Constitution
From a constitutional originalist perspective, there are no asterisks in the Constitution that suspend its provisions during emergencies. The idea that emergency powers can override constitutional limitations is appalling to those who understand that such powers have historically been the pathway to tyranny. The COVID-pandemic demonstrated how quickly emergency powers can be abused to implement tyrannical policies that restricted fundamental rights, from mandating masks to dictating movement in public spaces and even prohibiting church gatherings.
Similarly, when New Mexico Governor Michelle Lujan Grisham issued an emergency public health order in September 2023 that suspended the open and concealed carry of firearms in Albuquerque and Bernalillo County, she was roundly criticized for overstepping her constitutional authority. These examples illustrate the danger of allowing emergency powers to trump constitutional rights, a danger that the Founders sought to prevent by creating a government of limited, enumerated powers.
The President’s Constitutional Duty: Faithful Execution of the Laws
The job of the President is to execute the law, and if a law says he can take a particular action in the case of an emergency, he has the constitutional authority to do so not because the Constitution says so, but because the law in question says so. This is where it becomes essential that We the People pay attention to legislation and elect only the most constitutionally minded representatives. While the President does have the authority to ensure that executive branch agencies follow the Constitution, he does not have the authority to review and interpret laws as unconstitutional and then strike them down. His job is to execute the law as written.
This constitutional reality means that when Congress includes emergency powers in legislation, the President’s use of those powers is not an abuse of authority but a fulfillment of his constitutional duty. The proper constitutional response to the use of emergency powers that one finds objectionable is not to criticize the President for executing the law but to change the law itself.
As President Abraham Lincoln once commented, “The best way to get a bad law repealed is to enforce it strictly.”
Lincoln’s sentiment came from a speech Lincoln delivered in 1838 to the Young Men’s Lyceum of Springfield, Illinois, early in his political career. In that address, he made a more nuanced argument about the importance of respecting all laws, even bad ones, until they can be properly repealed.
Lincoln stated, “Let me not be understood as saying there are no bad laws… But I do mean to say, that, although bad laws, if they exist, should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed.”
His reasoning was that strict enforcement of problematic laws would expose their flaws and create public pressure for their repeal, while selective enforcement would allow bad laws to remain on the books indefinitely. The Heritage Foundation notes that “the best way to keep a bad law on the books is to allow its selective enforcement,” which is precisely what Lincoln was warning against.
This perspective reminds us of the deeper truth regarding the rule of law and the constitutional process, even while acknowledging that the legislative process sometimes produces flawed statutes that need correction.
In short, if critics of President Trump are angry he is using emergency powers, but the option of using emergency powers is in the law, then the best remedy is not to complain and accuse, but to change the law.
Trump’s Defense: Using the Tools Provided by Congress
The Trump administration has consistently defended its use of emergency powers by arguing that it is simply using the tools provided by Congress to advance policy goals. When asked about his use of emergency powers, Trump’s response has essentially been that if Congress provides him with these powers, he will use them to achieve his policy objectives. This approach reflects a pragmatic understanding of presidential power within the constitutional framework.
This defense aligns with Trump’s broader approach to governance, as famously captured by Dave Chappelle’s commentary on the 2016 presidential debate. When Hillary Clinton accused Trump of not paying taxes, Chappelle noted how Trump responded, “That makes me smart.” When pressed for evidence that the system was rigged, Trump explained, “I know the system is rigged. ‘Cuz I use it.”
Chappelle highlighted the part where Trump told Clinton, “If you want me to pay my taxes, then change the tax code. But I know you won’t, because your friends and your donors enjoy the same tax breaks that I do.”
As Chappelle concluded, Trump’s honesty about exploiting the system resonated with voters who felt the system was dishonest, not Trump himself.
Exposing Congressional Hypocrisy
The Democratic criticism of Trump’s use of emergency powers represents the height of hypocrisy. Many of the emergency powers Trump has used were created by Democratic administrations and supported by Democratic members of Congress precisely because they intended to use those powers themselves to advance their policy agenda. When Trump uses those same powers, they suddenly become unconstitutional abuses of authority.
The proper response to Trump’s use of emergency powers is not to criticize him for executing the law but to repeal or amend the statutes that grant those powers. However, they note that Democrats are unlikely to pursue this course because they want to preserve those powers for future Democratic presidents who might use them to advance progressive policies that Congress rejects.
Historical Context: Emergency Powers and American Governance
The use of emergency powers is not new but has been a recurring feature of American governance, particularly in the modern era. Presidents from both parties have declared emergencies to advance policy goals, often in the face of congressional inaction or opposition. These historical precedents demonstrate that the controversy over Trump’s use of emergency powers reflects not a constitutional violation but a political disagreement about the proper scope of executive authority.
The proper constitutional question is not whether Trump should use emergency powers but whether Congress should grant those powers in the first place. When Congress includes emergency provisions in legislation, it is effectively delegating authority to the President to act in specific circumstances. The President’s use of that delegated authority is not an abuse of power but a fulfillment of his constitutional duty to execute the law as written.
Change the Law, Don’t Blame the President
The controversy over Trump’s use of emergency powers reflects a fundamental disagreement about the proper scope of executive authority rather than a clear constitutional violation. The President has the constitutional authority to execute the laws as written by Congress, including provisions that grant specific powers during declared emergencies. When Congress provides the President with emergency powers, his use of those powers is not a violation of the Constitution but a fulfillment of his constitutional obligation.
Trump’s approach to emergency powers represents not an unconstitutional abuse of authority but a pragmatic use of the tools provided by Congress to advance his policy agenda. While critics may disagree with the substance of his emergency declarations, and I personally find their inclusion in federal law a violation of the Constitution, the constitutional legitimacy of his actions is well-established when properly understood as a faithful execution of congressional statutes.
Democratic criticism of Trump’s use of emergency powers reflects a fundamental misunderstanding of the President’s constitutional role as executor of the laws. The proper response to emergency powers that one finds objectionable is not to criticize the President for executing the law but to change the law itself. As Trump might say, if you don’t want me to use these powers, then change the law. But they won’t, because Democrats put those emergency powers there for themselves, so that they could circumvent the Constitution when it served their purposes.
— Political Pistachio Conservative News and Commentary
