Trump Is Using Fake Emergencies to Grab More Power than King George III
He has complete contempt for the legal and statutory limits to his authority so more laws will not constrain him
When Donald Trump announced last month that he had taken control of the Washington, D.C. police department, he invoked the D.C. Home Rule Act, which allows the president to place local police under federal control in an emergency, as the basis for his action. While some might take that to suggest Trump was acting lawfully, Trump had no basis for his invocation of that law. As political scientist David Ryan Miller observes, the Home Rule Act only allows the president to take over D.C. police when he “determines that special conditions of an emergency nature exist.” But there is no emergency in D.C. As Miller points out, “If we live in a system where the president can ... seize power by declaring anything an ‘emergency,’ we no longer live under the rule of law.”
No Kings
That is a concise description of the peril the U.S. faces today. Trump is claiming fake emergencies as a pretext to consolidate power of a kind enjoyed by 17th-century English monarchs—that is, the absolute power to act against statutory law. The federal takeover of D.C.’s police force is just one example of a practice Trump started during his first term in office but has turbocharged now. If Trump succeeds, he will become a kind of American king—something he has openly embraced. Indeed, Trump has indicated that he may claim absolute power to act against the law without even relying on a specific emergency claim. Last Tuesday, Trump declared “we’re going in” to Chicago, suggesting that he might ask Texas Gov. Greg Abbott to deploy National Guard troops in Illinois. Experts said it would be illegal for unfederalized National Guard troops from one state to effectively invade another. Trump has claimed that, as president, he has “the right to do anything” he wants to do, so long as he thinks “our country is in danger.”
We are approaching the 250th anniversary of the Declaration of Independence, which famously describes King George III as a tyrant. The American revolutionaries rejected the idea of a monarch ruling by “authoritarian fiat,” as the historian Jack Rakove explains. Seventeenth-century British monarchs had exercised absolute prerogative, the power to act against statutory law. By the end of the century, Parliament emerged as supreme following a civil war that included the execution of one king, as well as the bloodless “Glorious Revolution” of 1688-89 that deposed a second king. The historian Bernard Bailyn explains that “after the Glorious Revolution [the king] had sworn to govern according to the statutes of Parliament.” While the American revolutionaries worried that King George III had corrupted Parliament, the English monarch of 1776 no longer enjoyed absolute prerogative to act against the law. By claiming emergency prerogative to act against statutory law, Trump is asserting more power than King George had at the time of the American revolution.
Not surprisingly, the framers of the U.S. Constitution had no interest in creating a new monarchy in the style of 17th-century England. The Constitution assigns the U.S. president no substantive emergency power of any kind; the framers declined to give the executive the emergency prerogative to act against the law. Instead, Congress is given specific and limited emergency power, most prominently the power to suspend “the privilege of the writ of habeas corpus ... in cases of rebellion or insurrection [when] the public safety may require it.” Congress has enacted legislation, including the National Emergencies Act, Alien Enemies Act, and what is now known as the Insurrection Act, to give the president authority to respond to genuine emergencies.
The Trumpian Emergency
Most presidents have followed statutory law when using these powers, as I discuss in my new book on the dangers of emergency presidential power. In the past, even those who overreached almost always exercised self-restraint by refusing to use emergency power as a way to consolidate personal control as a dictator. For example, when Presidents George W. Bush, Barack Obama, and Joe Biden improperly extended the (initially justified) 9/11 emergency declaration years and then decades beyond the 2001 terrorist attacks, none of these presidents used this emergency declaration to deploy the military within the U.S.
A few presidents—most prominently Harry Truman and Richard Nixon—sought to exercise something in the vein of absolute emergency prerogative. Truman claimed the power to act against the law in an emergency when he took control of steel factories in 1952; government lawyers initially argued that this power was not even subject to judicial review. In the Youngstown Sheet decision, however, six Supreme Court justices rejected Truman’s claim, insisting that emergency presidential power is limited by law. Justice Robert H. Jackson’s seminal concurring opinion in that case compared Truman’s assertion of “unlimited executive power” to royal prerogative, remarking that the framers of the Constitution were not “creating their new Executive in [the monarch’s] image.” While one editorial cartoon depicted Truman in royal robes and the New York Daily News accused Truman of “do[ing] a Hitler,” Truman accepted the court’s ruling.
Although Truman dangerously overstepped constitutional bounds and sought power without limits in the context of the steel factory seizure, he was not an aspiring dictator. Nixon went further than Truman, claiming power without limits that justified violating criminal law based on a theory of emergency prerogative. Like Truman, however, Nixon was stopped—in Nixon’s case, both the Supreme Court and Republicans in Congress insisted that limits applied to presidential power. Nixon was forced to resign or else be removed from office.
Like Nixon, Trump is an aspiring dictator—but, unlike Nixon, Trump operates largely free from political and legal checks, thanks to supine Republicans in Congress and six right-wing Supreme Court justices who have granted Trump immunity from criminal prosecution. Trump understands that he can essentially do as he pleases, and he has seized on emergency prerogative as a way to consolidate power. This is no surprise; Trump relied on pretextual emergencies during his first term, including most prominently when he declared a contrived emergency at the southern border as a way to unlock money Congress had denied him for a border wall.
What’s different in his second term is the broad scope of Trump’s actions. Trump has claimed phony emergencies to: justify sending hundreds of Venezuelan men to a prison in El Salvador notorious for torture; deploy the National Guard and Marines in Los Angeles; impose tariffs on other countries; and to take over the local police in Washington, D.C. None of these actions is legal, as each one relies on a false claim of emergency to invoke statutory authority.
Although Trump invokes statutes, he is actually relying on emergency prerogative to act against the law. In doing so, he has created a kind of dual state, as noted by Kim Lane Scheppele and Aziz Huq. Scheppele and Huq, in separate pieces, point to Ernst Fraenkel’s use of the term to describe Nazi Germany. Fraenkel explained that, for most people in Nazi Germany, “life went on as usual.” But the Nazis created a “parallel ... Prerogative State, in which arbitrariness reigned and all safeguards of law disappeared.” This is where we find ourselves today. Most Americans are largely untouched by prerogative. Most do not live in cities where Trump has invoked fake emergencies to justify military crackdowns or to remove them from the U.S., and they may not connect any events in their daily life to Trump’s imposition of tariffs even as prices are rising. They may not even realize that Trump has used a pretextual emergency as the basis for many of the tariffs he has unilaterally imposed.
The reality, however, is that Trump “has tried to use powers legally reserved for extreme exigencies—invasion, war, grave threats to national security—to address essentially normal political challenges,” as Ilya Somin has written. For the most part, he is succeeding. No court was able to stop him from sending hundreds of Venezuelan men in the U.S. to prison in El Salvador. While a U.S. district court judge ruled against Trump’s deployment of troops to Los Angeles, an appeals court allowed the troops to remain and today the Supreme Court has for now allowed ICE to go forward with its “roving raids” and inquire about the citizenship status of people based on race and accent. Similarly, although another federal appeals court ruled against tariffs that were issued based on a phony emergency, the tariffs have remained in effect for months while the case is headed to the Supreme Court.
Republicans in Congress have failed to act on any of these power grabs. Most importantly, perhaps, Trump understands he will face no meaningful consequences for crying “emergency”; the worst that could happen, from his perspective, is that a federal court belatedly calls a halt to some of his actions. At that point, Trump might simply ignore the court’s decision (as the administration has already done in some cases), or hope for a reliable majority on the Supreme Court to (once again) put a thumb on the scale in his favor.
Where Do We Go From Here?
This is bleak and sobering situation, to say the least. But once we understand what we face, the next task is to think creatively about what can be done while recognizing what still remains of our now failed constitutional system. Trump openly admires Russian dictator Vladimir Putin and would like to exercise the same level of dissent-crushing power Putin has. But the United States is not Russia, and that is crucially important. Americans can still publicly criticize Trump and his authoritarian actions. Public protest remains possible. Those of us who cherish constitutional democracy and want to fully restore it in the U.S. can and must use all peaceful, non-violent means available to us.
Some government officials are challenging Trump’s actions—for instance, D.C. Mayor Muriel Bowser and D.C. Attorney General Brian Schwalb objected to the illegality of parts of the effort to take over D.C.’s police force (although, unfortunately, D.C. officials seem to incorrectly concede that Trump had authority to declare an emergency when none existed). After Trump threatened to send troops to Chicago, Illinois Gov. JB Pritzker bluntly responded, “Mr. President, do not come to Chicago.”
We must recognize the gravity of the moment. It is unlikely that we will arrive at a political solution before the 2026 elections, or even before the 2028 elections. If Republicans would not disqualify Trump from office after his role in the Jan. 6 assault on the Capitol and the broader attempt to overturn the 2020 elections, it is not plausible to expect that they will ever hold Trump accountable, and Democrats would need Republican votes to remove Trump from office even if they can gain control of Congress after the 2026 election. The same is true for the Supreme Court. Trump understands this, and he will continue to use make-believe emergencies as a pretext for authoritarian actions, including the ongoing military/police state crackdown on U.S. cities. We can expect this to expand, as Trump has made clear—and also likely use phony emergencies as a basis for interfering with future elections, as Elizabeth Goitein observed in 2019. If Trump will use the military now, why wouldn’t he also do so in the context of elections as an attempt to intimidate voters in Democratic areas? We can expect even worse if there is something that Trump can more plausibly describe as a genuine emergency.
We are in a dark place, to say the least—but we can’t turn away. We must describe and confront our reality by continuing to tell the truth. What Trump is doing is wrong, it is foundationally un-American, and it is profoundly dangerous. Many Americans understand this. There is no immediate resolution here, but we can start to map a path forward by identifying where we want to end up: in a United States recommitted to the rule of law, limits on power, and constitutional democracy. Statutory changes will not be enough to accomplish this, even if they could be made (and, of course, Republicans in Congress will not do so). Trump relies on a theory of power that does not depend on statutory authority and in fact rejects legislative authority as a check on presidential power.
Ultimately, we will need fundamental constitutional reform and a revitalized constitution to set meaningful limits on presidential power. Even then, there is no guarantee of success. We will still need human beings in positions of authority to do their jobs and carry out their constitutional responsibilities. We have seen over the past decade that this cannot be guaranteed. However, there are still steps we can take to increase the odds in favor of limited presidential power. Those of us who prefer this to Trump’s claim that he can do as he pleases must refuse to accept the notion of a U.S. president who can abuse emergency power at his whim.
© The UnPopulist, 2025
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Well we just learned the hard way with the Shadow Docket decision today in Noem. He has mo worries. SCOTUS will green light any and all. No commentary required just a big rubber stamp