Whether it’s federalizing the National Guard or imposing tariffs, the predicate is an emergency. Congress has enacted laws that confer powers, to a greater or lesser extent, on the president to deal with emergent situations that require action immediately and can’t wait for Congress to get its act together. But these laws presuppose that there is, in fact, an emergent situation, an emergency.

In the District of Columbia, Trump declared there is a crime emergency. There was, of course, crime occurring, as there pretty much always is. The magnitude of crime was lower than it had been in the past, although some denied that the statistics were legitimate. Then again, even if the statistics were being fudged, that does not prove that crime was either increasing or a sudden crisis. At worst, it was status quo. What part of this gave rise to an emergency? Trump said so.

Similarly, Trump declared that the trade deficit between the United States and the rest of the world was an emergency. There was nothing about the trade deficit that was any different than it had been for years, so what about this made it emergent? Trump said so.

Is an emergency something that is an actual emergency? What would define such a thing? It’s easier to argue that there has been no change, no sudden shift, that could reasonably be considered emergent, but where would the line be drawn? Congress provided no definition of emergency, and the courts have yet to wade into the definitional aspect. While some lower courts have held that no emergency exists because, well, there is nothing emergent upon which to base such a claim, the National Emergencies Act of 1976 puts the decision in the president’s hands.

With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.

The president is required to notify Congress, which then has the power to terminate the declaration of emergency by joint resolution, and Congress must, within six months, meet to consider whether to issue a joint resolution.

The National Emergencies Act presumes that a president would not declare an emergency except in good faith. In other words, the president would not do so merely to seize the extraordinary powers when no emergency existed. To be fair, this power has been misused by presidents all along, declaring emergencies in order to take action in the face of congressional paralysis or inaction.

That said, the power has never been as openly and flagrantly abused as it has under Trump, who has promiscuously declared non-existent emergencies for the express purpose of usurping congressional authority to taking unprecedented unilateral power. And given the make-up of Congress, there is little chance that any joint resolution to terminate the president’s declaration of an emergency is forthcoming.

The question remains whether the courts can or will step in to hold that a presidential declaration of an emergency must have some reasonable basis in there being an actual emergency, and not merely as a pretext to seize and exercise power. Thus far, the Supreme Court has dodged the question, leaving Trump to declare emergencies whenever the mood strikes. Of course, if Trump can do so, so too can President AOC when she declares a climate emergency.