INTRODUCTION

In the aftermath of Donald Trump’s return to the White House, a flurry of executive orders and memoranda has once again brought the concept of “national emergency” to the forefront of American governance. Within hours of taking office, the administration declared a “national emergency at the southern border,” villainized immigration, and raised the specter of a “border emergency” vaguely connected with a threat of “foreign terrorist organizations.” At first glance, these actions might resemble a continuation of tactics from Trump’s previous term, especially his 2019 declaration of a national emergency at the border. On closer inspection, however, the administration’s actions stretch well beyond traditional emergency contexts of national security or foreign policy, seeping into what were once ordinary spheres of domestic governance. Two separate executive orders, for example, both announce the existence of a “national energy emergency” and instruct relevant agencies to address the “emergency.” A separate presidential memorandum directed federal agencies to “deliver emergency price relief” by taking actions to reduce costs of housing, food, and fuel.  

Although the United States has long granted its presidents statutory authority to respond to genuine crises, there is something distinctly unsettling about how routine policy matters are now cloaked in the language of imminent threat. The events surrounding the January 6, 2021, Capitol riot cast these developments in an especially ominous light. That episode, viewed by many as an attempted coup, could have been followed by a definitive repudiation of the perpetrators’ methods. Instead, it has been recast by President Trump as a “day of love,” and those once labeled insurrectionists have been rebranded as “patriots” and pardoned en masse. A failed coup, seemingly discredited at the time, has now been reframed; its leader returned to office through legal means, and the machinery of American government is being galvanized by a constant drumbeat of declared emergencies.

LESSONS FROM GLOBAL EMERGENCY POWERS

This dynamic resonates with a historical lesson repeated across various contexts, where leaders exploit or expand emergency powers to erode constitutional norms. In India under Indira Gandhi, for instance, the “internal emergency” granted her government sweeping authority to detain opponents and restrict civil liberties until voters eventually rejected those measures at the polls. Viktor Orbán in Hungary systematically employed legal maneuvers to undercut checks and balances, consolidating his power into an authoritarian regime. Hugo Chávez instigated an unsuccessful coup in Venezuela for which he was pardoned prior to winning the presidency six years later. And, as I have discussed elsewhere, Germany’s Weimar Republic provides yet another example, with Adolf Hitler—legally installed as Chancellor after failing to overthrow the Bavarian government in 1923’s Beer Hall Putsch—leveraging emergency powers under Article 48 of the Weimar Constitution to control domestic policy. I want to clarify: The concern raised in this essay is not the oft-repeated analogy directly comparing Donald Trump to Hitler (or any of the other executives discussed above) or analogizing the MAGA movement to Nazism. I recognize that one cannot equate the specific contexts at play—Germany was beset by deep economic instability and post-war turmoil. Instead, this essay will highlight Weimar Germany’s experience (among others) as a prime illustration of how easily a constitutional system can succumb to authoritarian ambitions once emergency powers become the norm.

Indeed, the structural echoes to the fall of the Weimar Republic are unsettling here. In Weimar Germany, for example, the Beer Hall Putsch in 1923 was a failed coup—an ultimately unsuccessful effort by right-wing extremists (including Hitler) to seize power from the Bavarian government and eventually overthrow the Weimar Republic—and its plotters were only briefly punished. Yet by 1933, Hitler rose to power through legal channels, effectively winning public office and consolidating influence in the Reichstag. The Weimar Constitution provided the new chancellor with broad emergency powers under Article 48—meant to defend the young republic from existential threats—but it was precisely those formal, sweeping authorities that, after fire destroyed the Reichstag building itself, helped transform Germany into a dictatorship when Hitler and his allies invoked repeated states of emergency. Mr. Trump’s post-coup political rehabilitation recalls the broader pattern of Weimar’s pivot from democracy to authoritarian rule. In both instances, a government that withstood an attempted violent overthrow later witnessed that same failed coup leader leverage formal constitutional processes to assume power. In both, a continuing climate of fear and crisis talk smoothed the path for executive claims of necessity. The Trump Administration—aided by laws like the National Emergencies Act and the International Emergency Economic Powers Act, instead of a constitutional equivalent to Article 48—has now adopted a far-reaching array of emergency declarations, including some directed at domestic policy. This pattern—an aborted power grab followed by a re-entry to government through ostensibly legal means, culminating in broad reliance on extraordinary powers to consolidate authority—presents a classic illustration of democratic backsliding. The Trump Administration’s spate of new directives, each invoking some version of “unusual and extraordinary threat,” offers a textbook example of this well-trod playbook. Of course there are many other hallmarks of democratic backsliding, but a full examination of them all is well outside the scope of this brief essay.

DOMESTIC EMERGENCIES

Emergency powers are nothing new, and we need not look only to the tragedy of Weimar Germany for examples of how they have been used (and misused). Of course, emergency powers have been used repeatedly in many different contexts and constitutional systems. Indeed, our own country has navigated near-crises before. Even during the Civil War, arguably the most legitimate emergency in American history, Lincoln’s broad exertions of power triggered fierce legal and political debates. During FDR’s tenure as President, the federal government greatly expanded its role in domestic policy through a mix of legislative and executive actions. These New Deal efforts sparked substantial resistance at all levels of government.  And, of course, the last administration rolled out an ambitious executive agenda to combat the COVID-19 pandemic—again stirring up stiff opposition. Ultimately, these watershed moments did not extinguish constitutional governance.

But a significant factor in our country’s previous ability to navigate these conflicts over emergency-based governance was the informal norms of our institutions and leaders that previously tempered the more extreme potential of emergency powers. Those safeguards hinge on leadership that respects unwritten limits. The problem, as seen in the first Trump Administration, is that Mr. Trump himself rarely behaves as though any unwritten limit is valid if it impedes his objectives. Again, my previous work underscores precisely this danger. Constitutional collapse often does not arise merely from the existence of formal emergency powers; it also requires an executive willing to exploit them without regard for custom and compromise. It is the deadly combination of permissive legal frameworks and leaders unconstrained by institutional norms that can unravel democracy from within.

Another significant difference in the current administration’s use of emergency power is its willingness to deploy these ostensibly crisis management tools to redirect seemingly ordinary domestic policy. Several of the new directives stand out for how boldly they conflate routine domestic issues with extraordinary danger. The order requiring agencies to use “all possible authorities” to expedite energy permits, for example, would ordinarily be handled by existing administrative processes within the Department of Energy or the Federal Energy Regulatory Commission. Labeling this as an energy crisis does little but shortcut public commentary procedures, environmental reviews, and other checks designed to guard against hasty decision-making. So too, the order guaranteeing “protection against invasion” for the states, citing the Immigration and Nationality Act as granting the president special emergency tools, alters the existing robust legal structures of immigration law. Framing a migration issue in terms of invasion underscores the severity of the language—and sets a precedent for deploying military assets domestically without the kind of congressional authorization once deemed essential. Similarly, the memorandum tying “unlawful migration and fentanyl flows” to trade policy treats cross-border economic relationships as if they are inseparable from a near-wartime scenario. These examples are significant not just because they strain credulity, but because they demonstrate exactly the pattern of democratic backsliding that we have seen play out time and again: once the executive normalizes using emergency powers for internal governance, and is unwilling to abide by informal norms of self-restraint, the potential for deep constitutional fractures escalates.

As my previous writing suggests, in the absence of a genuine threat, the executive’s reliance on emergency powers becomes especially vulnerable to abuse, because skepticism and public outcry are more easily sidelined when people have been primed to accept constant crisis rhetoric. That dynamic appears to be unfolding now, as the administration floods the news cycle with “unusual and extraordinary threats” on multiple fronts. Many Americans may have become too exhausted or polarized to resist such a narrative.

INSTITUTIONAL CHECKS AND JUDICIAL UNCERTAINTY

It would be one thing if Congress or the courts swiftly intervened to parse the legitimacy of these claims, but it remains to be seen whether these institutions will be able—or willing—to push back. Courts have a checkered history when it comes to reining in emergency powers. This is especially true when the Court is confronted with claims of a national security crisis, as the Korematsu decision and the Court’s initial use of procedural mechanisms to avoid questions raised by 9/11 detainee cases make clear. In certain landmark moments, however, like the Steel Seizure case, the Supreme Court famously stood firm, declaring that President Truman’s “emergency” seizure of steel mills exceeded his constitutional authority despite the backdrop of the Korean War. More often, however, courts have deferred to the executive’s judgment, especially on matters touching national security.

In the more recent pandemic context, the Supreme Court showed itself surprisingly willing to limit executive and administrative actions taken under emergency health powers, halting the Biden Administration’s eviction moratorium and vaccine mandates in certain spheres. That pushback may imply that courts have grown warier of the endless invocation of crisis powers, or it may be an outlier driven by a strong ideological skepticism toward the reality or severity of COVID-19. If the latter is true—if the courts were motivated primarily by doubts about the pandemic’s legitimacy—then we cannot confidently expect them to be equally skeptical of Trump’s string of declared emergencies, some of which relate to border security and drug trafficking (issues that historically garner judicial deference). The next few months may reveal whether the judiciary’s pandemic-era intervention was a sign of renewed vigilance against overreaching emergency power or simply a politically contingent stance that aligned with conservative discomfort around COVID mandates.

And so the question remains whether the other branches of government or the public will refuse to accept these repeated declarations at face value. Another historical parallel can be drawn here, to the Indian “Internal Emergency” declared by Indira Gandhi in 1975. Her government used constitutional provisions to centralize power, curb civil liberties, and imprison political opponents. For a time, there was limited institutional resistance, and Gandhi governed almost unchallenged under the guise of dire necessity. Notably, prior to the Internal Emergency, the Gandhi-led government had been using emergency powers without much domestic resistance when dealing with the civil war in what are now the neighboring countries of Pakistan and Bangladesh. But the decision to extend the use of emergency authority to domestic matters proved a bridge too far. The turning point, however, did not come until the Indian people, fatigued by the government’s increasingly authoritarian tactics, overwhelmingly rejected Gandhi in the 1977 elections. That decisive vote signaled a broader repudiation of emergency rule and contributed to the eventual restoration of India’s constitutional norms.

The American experiment now confronts its own test of will: Congress has the power to revise or repeal statutes that allow indefinite emergencies, but partisan divisions often make such legislative pushback unlikely. The courts could take a cue from their more interventionist stance during the pandemic, subjecting the administration’s emergency declarations to rigorous factual scrutiny. The public, too, could demand accountability, though polarization and crisis fatigue may undermine sustained engagement. In light of the pardons granted to the January 6 rioters and the reframing of that failed coup as a patriotic event, one might question whether Americans retain the memory or capacity for outrage that drove Indians to reject Indira Gandhi’s emergency.

CONCLUSION

Thus, America finds itself drifting into a potentially dangerous-for-democracy scenario where the real question is whether this proliferation of emergency power will be reined in or allowed to further corrode constitutional constraints. The lesson from Weimar Germany, Indira Gandhi’s India, and even our own history is not that every use of emergency measures is inherently destructive; it is that once the boundary between normal legislation and crisis action becomes blurred, a democracy risks teetering on the edge of collapse. The rhetoric coming out of the White House now operates as if the entire nation is perpetually at risk, a mindset that can easily lead to broad-based crackdowns on dissent or the disappearance of meaningful debate. Trump’s second administration, marked by these sweeping orders, has so far seemed intent on pushing emergency powers to extremes, precisely as Weimar’s leaders did with Article 48. If the courts and Congress acquiesce, the United States could replicate the slow degradation of checks and balances that once allowed a fledgling German democracy to be dismantled in plain sight.

As Justice Frankfurter cautioned in his Youngstown concurrence, the accumulation of power rarely happens overnight; it often gains momentum through a series of unchallenged expansions. From the vantage point of this new administration, that process is unfolding exactly as described. A failed coup has been reframed as a moment of national pride, the participants pardoned, and the White House occupied anew by its main architect, who issues wave after wave of crisis-level edicts. The Supreme Court’s reaction is still uncertain, but historical patterns suggest that courts often falter in the face of executive claims to protect national security. Rather than being confronted by a single dramatic event, we witness a slow burn, a constellation of orders that each nibble away at accountability, expanding presidential discretion by appealing to fear and urgency.

None of this suggests an inevitable slide into autocracy. Even some of history’s most sobering examples include moments where outside institutions rallied. But all too often the story of democratic devolution is that constitutional collapse often comes through legal avenues laid by well-meaning or inattentive legislators, a judiciary hesitant to confront sweeping executive claims, and an electorate confused or distracted by the constant declarations of crises. It remains to be seen if the courts—previously willing to strike down certain COVID-19 measures—will likewise challenge the notion that every disagreement or inconvenience in national life constitutes an “unusual and extraordinary threat.” The pattern established in Weimar, illuminated by my prior research, shows how quickly an emboldened executive can dismantle constitutional norms by activating formal emergency powers. The pivotal question is whether anyone will be there to stop it—or whether, as Justice Frankfurter put it, the “generative force of unchecked disregard” will continue gathering momentum until the Constitution’s fences have all but fallen away.

Brandon J. Johnson is an Assistant Professor of Law at the University of Nebraska College of Law. The author thanks Eric Berger, Haiyun Damon-Feng, Danielle Jefferis, Kyle Langvardt, and Elise Maizel for their insights on early drafts of this essay. The author also thanks David Earl for his excellent and timely research assistance.