A Ready Pretext

To the People of the United States:

In No. 3, From Those Who Spend to Those Who Pay, I traced how the decision to go to war moved from Congress to the President. The same thing has happened, more quietly, to the power to make law in a crisis. War at least has a clause in the Constitution. Emergencies do not.

1. The pain point today

As of September 2026, fifty-two national emergencies were in effect. ¹ In ordinary speech an emergency is sudden and brief. Under the National Emergencies Act it lasts until a President ends it, renewed each year by a notice in the Federal Register.

Executive orders tell the same story at a different scale. The President who served from 2009 to 2017 signed 276. The President from 2017 to 2021 signed 220. The President from 2021 to 2025 signed 162. The President in office since January 2025 had signed 285 by September 20, 2026. ¹

The orders are not small. In 2019 a President declared a border emergency and moved $6.1 billion that Congress had appropriated for other purposes into border barriers. In 2022 a Secretary of Education, citing the COVID-19 emergency, announced the cancellation of roughly $430 billion owed by 43 million student borrowers. In 2025 a President declared an emergency over the trade deficit and imposed tariffs on almost every trading partner; customs duties rose from $77.0 billion in fiscal 2024 to $194.9 billion in fiscal 2025. ¹²³ Each was struck down or abandoned in the end. Each changed the country first.

Decisions on borrowers’ debts, the price of imports and billions in military construction were made without a vote in Congress. That is the pain point. Not that Presidents act, but that the place where laws are supposed to be made has become the place where they are least often made.

2. What they warned

The Constitution opens by drawing the line. “All legislative Powers herein granted shall be vested in a Congress of the United States” ✓ verified, Q01. “The executive Power shall be vested in a President of the United States of America.” ✓ verified, Q02 The President “shall take Care that the Laws be faithfully executed” ✓ verified, Q03. Execute, not write.

The founders knew the old name for the power to act without law. John Locke, whom they read closely, defined it in 1689: “This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative” ✓ verified, Q04. Locke defended it for emergencies the law could not foresee. He also said that when a people limits it by statute, nothing is stolen from the ruler: “they have a very wrong notion of government, who say, that the people have encroached upon the prerogative, when they have got any part of it to be defined by positive laws” ✓ verified, Q05.

Madison set the boundary in The Federalist No. 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.” ✓ verified, Q06 In No. 48 he warned that lines on paper would not hold by themselves. It was not enough “to trust to these parchment barriers against the encroaching spirit of power” ✓ verified, Q07. The structure had to make each branch defend itself, the design of The Federalist No. 51 that I set out in No. 1.

Hamilton made the case for a strong President, and made it well. “Energy in the Executive is a leading character in the definition of good government.” ✓ verified, Q09 But he paired energy with safety, which he defined as “a due dependence on the people, secondly, a due responsibility.” ✓ verified, Q10

The Anti-Federalists did not trust the pairing to last. Cato wrote in 1787 that “if the president is possessed of ambition, he has power and time sufficient to ruin his country.” ✓ verified, Q11 To those who said American manners would restrain any President, he answered: “a general presumption that rulers will govern well is not a sufficient security.” ✓ verified, Q12 Patrick Henry, in Virginia’s ratifying convention in June 1788, was blunter: “Your President may easily become king.” ✓ verified, Q13 And he asked the question every generation has to answer for itself: “Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty!” ✓ verified, Q14

A century and a half later the Supreme Court took up a President’s claim of emergency power, when the sitting President in 1952 seized the nation’s steel mills during a war. It is the same case in which Justice Jackson warned, as I quoted in No. 3, that congressional inertia can invite a President to act on his own. The Court said no. “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” ✓ verified, Q15 Justice Jackson explained why the founders wrote no general emergency clause. “They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.” ✓ verified, Q16

3. How it came true

Congress did not lose these powers in a coup. It handed them over in statutes, one at a time.

The border, 2019. A President declared a national emergency and redirected $2.5 billion in defense funds and $3.6 billion from 127 deferred military construction projects. Both chambers voted to end the emergency, twice. Both resolutions were vetoed, and both overrides failed. The Supreme Court allowed the spending to go forward, finding that the challengers likely had no cause of action. After the next President ended the emergency in 2021, the Court vacated the lower court’s judgment. ¹ The money was spent. The question was never answered.

The pandemic, 2020 to 2023. A national emergency declared in March 2020 under one President carried into the term of the next. Under it, the Centers for Disease Control issued a nationwide eviction moratorium in 2020 and extended it into 2021, until the Supreme Court held, 6 to 3, that the agency likely lacked the authority. A rule requiring about 84 million workers to be vaccinated or tested was stayed, 6 to 3. In 2022 the same emergency was cited to cancel student debt; in 2023 the Court held, 6 to 3, that the statute did not authorize it. ² About 2.9 million border expulsions under a public health order ran across both administrations. Congress ended the emergency by law in April 2023, and the sitting President signed it. ²

Trade, 2018 to 2026. In 2018 a President imposed tariffs on steel and aluminum under a 1962 national security law that has no time limit, and his trade representative imposed tariffs on about $370 billion in Chinese goods. The next President kept those tariffs and in 2024 raised some of them, on electric vehicles to 100 percent. ³ In 2025 a President invoked a 1977 emergency law, never before used for tariffs, to tax imports from nearly every country. In February 2026 the Supreme Court held, 6 to 3, that the power to regulate importation does not include the power to tax it. Refunds began in April. A substitute surcharge under another statute was held unlawful by the Court of International Trade in May. ³ Article I gives the taxing power to Congress. Through all of it, under both parties, the tariffs rested on old delegations, not new votes.

Immigration and the streets. In 2012 and 2014 one administration granted deferred action by memorandum, and a deadlocked Court left an injunction against the larger program in place. In 2017 the next administration rescinded the earlier program, and the Court held the rescission arbitrary. In 2025 a President ordered that children born here to parents present unlawfully or temporarily were not citizens; in June 2026 the Court held that they are. ⁴ In 2025 Guard troops were federalized for Los Angeles, Portland and Chicago over the objections of state governors, and in December the Court declined to let the Illinois deployment proceed. ⁵

Read the record across, not down. Presidents of both parties reached for the same tools, and courts ruled against Presidents of both parties. In nearly every case, the policy changed lives for months or years before any court or Congress spoke.

4. The choke point

Delegation without retrieval. Congress wrote broad standby powers into law: the 1962 trade statute, the 1976 emergencies act, the 1977 economic powers act, education and immigration statutes with broad grants of discretion. It meant them for rare cases. Then, in 1985, it changed the emergencies act so that ending an emergency takes a joint resolution, which a President can veto. ¹ The result is the trap I described for war powers in No. 3: the President can start alone, and Congress needs two-thirds of both chambers to stop him. In 2019 it tried twice and failed twice. Jackson saw this coming: “only Congress itself can prevent power from slipping through its fingers.” ✓ verified, Q17

Gridlock invites substitution. When Congress will not legislate on immigration, trade or student debt, Presidents act by order, and the next President undoes it by order. Policy by whiplash is not a failure of one party. It is what happens when the legislative branch stops doing legislative work and the executive branch fills the space. Hamilton’s energy without Hamilton’s responsibility is just speed.

The courts arrive late. The judiciary has checked Presidents of both parties in this period, often decisively. But it decides after the fact, sometimes on standing or procedure rather than the merits, and in the meantime the barrier money was spent, the tariffs were collected, and the moratorium ran for about a year. A check that arrives after the harm is a remedy, not a restraint.

Every power becomes an inheritance. In my forthcoming No-America I name the missing discipline reciprocal restraint, and my description there reads like a history of the emergencies act: “every power seized in a moment of advantage becomes an inheritance, and offices change hands, majorities dissolve, and the precedent outlives the emergency that excused it.” ✓ verified, S1 My test is simple: “before your side breaks a norm, picture the tool in the hands of the opponent you fear most, because that is who will eventually hold it.” ✓ verified, S2 The polluted reading of that gauge is the one we have: “every new power is seized on the theory that the other side would have seized it first.” ✓ verified, S3 Each coalition remembers the other’s emergency. Each excuses its own: the symmetry collapse of No. 1, with a statute book attached. My shorthand for the whole era is “everyone’s crazy, but my crazy is justified.” ✓ verified, S4

Rules that no one voted for. The sharpest line I have written on this describes where this leads: “No-America is not the absence of rules. It is the survival of rules people no longer believe were honestly earned.” ✓ verified, S5 A tariff Congress never voted on, a debt cancellation Congress never voted on, barrier money Congress never voted to spend that way: each lands on citizens as a rule without a forum. Half the country obeys it and the other half waits for its turn. In my New Declaration of Independence I wrote that free citizens withdraw their consent, where lawfully possible, “from any policy or program that violates the clear limits of the Constitution or tramples the rights of law-abiding citizens in the name of safety, equality, or progress.” ✓ verified, D1 An emergency is the oldest name for safety.

5. The fix and the prevention

1. Make emergencies expire. Amend the National Emergencies Act so that an emergency ends after 30 days unless Congress approves it by joint resolution, and every renewal requires a new vote. This is the core of the ARTICLE ONE Act, introduced in 2019, 2021 and 2023 and reported by a Senate committee in 2019. None became law. ¹ Trade-off: a real emergency can outlast 30 days, and a divided Congress might let one lapse. Pair the sunset with guaranteed, expedited floor votes so that approval cannot be blocked by delay.

2. Keep emergencies away from the purse and the tax power. Bar the use of emergency declarations to move appropriated money between purposes or to impose taxes and tariffs. Put a time limit on the 1962 national security tariff authority, as Congress already does for the 150-day balance-of-payments surcharge. Trade-off: trade pressure and security responses sometimes need speed. Speed can be granted for 150 days. Permanence should require a law. I take up the purse in full in No. 7, and the wider surrender of Congress’s power in No. 11.

3. Show the work. Require every executive order and emergency declaration to state the exact statute it relies on and to publish a cost estimate for major orders, on the day it is signed. Trade-off: paperwork does not stop a determined President, but it makes the legal theory testable from day one.

4. Learn from the states. Since 2020, legislatures in at least nine states gave themselves the power to end emergencies, and several states cap emergencies at 28 to 60 days. ² The federal government can borrow what worked.

5. Consider an amendment, carefully. An emergency powers amendment could provide that any declared emergency lapses after 60 days unless both chambers approve it by majority vote, with no veto. Trade-off: Jackson noted that the founders deliberately wrote no general emergency clause. An amendment that limits emergencies also, for the first time, writes them into the Constitution. Many will prefer the statutory route for exactly that reason.

6. What you can do. Ask your Representative and Senators one question: will you vote to make emergencies expire even while your own party holds the White House? That is the reciprocal restraint test, and it is the only version of the question that matters. Look at the list of fifty-two emergencies and ask which of them your representatives have ever voted on. My rule for every citizen applies here: “What is tolerated controls.” ✓ verified, S6

6. The strongest objection, and the answer

The objection. Government needs a President who can act. Hamilton was right that energy is essential to good government, and Locke was right that no legislature can foresee every crisis. Pandemics, attacks, financial panics and cyber assaults do not wait for committee hearings. Congress is divided and slow, and if it will not act, someone must. The courts have checked every overreach in this paper, which proves the system works. And voters can remove a President who abuses power.

The answer. Every part of that is half right. Energy is essential, and nothing here touches a President’s power to respond quickly. The question is how long the response may run and who must ratify it. Hamilton himself paired energy with “a due responsibility” ✓ verified, Q10, and Locke said that defining prerogative by law takes nothing from the ruler that was his by right. A 30-day emergency, followed by a vote, is energy with responsibility.

The courts did check. They checked late, after the money was spent and the tariffs collected. Elections check the person, not the precedent: the next President of the other party inherits every tool. And if Congress will not act, that is the disease to cure, not a license to bypass it. Jackson’s conclusion still stands: “men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.” ✓ verified, Q18

7. Questions for the Candlelight

1. Patrick Henry asked to be shown a country whose liberties survived on “the sole chance of their rulers being good men” ✓ verified, Q14. Can you name one? What does your answer say about how we should write emergency laws?
2. Which emergency or executive order of the last twenty years did you support? Would you support the same power in the hands of the President you most distrust?
3. Fifty-two national emergencies are in effect. Should any emergency be allowed to last for years? Who should decide when one ends?
4. When Congress will not act on a problem you care about, is a President justified in acting alone? Where is the line?
5. Courts ruled against Presidents of both parties in this period, but often after the harm was done. Is a late check a real check?
6. Jackson said only Congress can keep power from slipping through its fingers. What would it take for your representatives to want to hold on to it?

Source notes

1. Office of the Law Revision Counsel, 50 U.S.C. Ch. 34 (National Emergencies Act); CRS R45937; GovInfo bill status for H.J.Res. 46 and S.J.Res. 54 (116th); House Roll Calls 94 and 127 (2019); Senate votes 116-1-49 and 116-1-325; Trump v. Sierra Club, No. 19A60 (2019); Biden v. Sierra Club, No. 20-138; Proclamation 10142 (2021); Biden v. Nebraska, No. 22-506 (2023); American Presidency Project executive order statistics (as of 2026-09-20); Brennan Center for Justice, “Declared National Emergencies Under the National Emergencies Act” (2026-09-16); GovInfo bill status for the ARTICLE ONE Act bills (S. 764, 116th; S. 241 and H.R. 2996, 117th; S. 1912, 118th). Via brief 10, “National emergencies and spending.”
2. Proclamation 9994 (2020); Alabama Association of Realtors v. HHS (2021); NFIB v. OSHA (2022); Biden v. Missouri (2022); H.J.Res. 7 and Public Law 118-3 (2023); KFF on Title 42 (2023); NCSL reports of 2022-02-28 and 2023-09-22. Via brief 12, “COVID-19 emergency powers.”
3. CRS LSB11398, IF10667, IF11346; Federal Register (2024-05-20) memorandum on Section 301; V.O.S. Selections v. Trump (Fed. Cir. 2025); Proclamation 11012 (2026); CBP, “IEEPA Duty Refunds”; State of Oregon v. United States, CIT Slip Op. 26-47 (2026); Learning Resources, Inc. v. Trump / Trump v. V.O.S. Selections (2026); Treasury Monthly Treasury Statement Table 4 (customs duties). Via brief 17, “Tariffs and trade powers.”
4. DHS memorandum (2012-06-15); United States v. Texas (2016); DHS v. Regents (2020); Executive Order 14160 (2025); Trump v. Barbara, No. 25-365 (2026). Via brief 11, “Immigration by executive action.”
5. Executive Order 14333 (2025); Newsom v. Trump (N.D. Cal. 2025); Oregon v. Trump (D. Or. 2025); Trump v. Illinois, No. 25A443 (2025). Via brief 27, “Domestic troop deployment.”
6. Supporting answers already published on The Seat: “What is prerogative, and how far may the executive act without law?” https://civicrealism-ask-api.vercel.app/api/job?id=92ea3c2bfe4d4ec3 ; “How strong should the executive be?” https://civicrealism-ask-api.vercel.app/api/job?id=22dbad69747d3d09 ; “Why does good government need an energetic executive?” https://civicrealism-ask-api.vercel.app/api/job?id=5560e8b2afcee37a

Founding-era, constitutional and judicial quotations are verified word for word against the Civic Realism founders corpus (passage ids in the table below). Spelling follows the edition in the corpus, including “selfappointed” in the Avalon text of The Federalist No. 47, which the quotation omits by ellipsis. Case names are given as captioned; modern officeholders are otherwise named by office and year.

[S1-S6] Shawn Cosner, No-America (forthcoming; Reading Edition v1.2, unpublished manuscript, 2026). ✓ verified, D1 Shawn Cosner, “A New Declaration of Independence” (December 2025, unpublished).

Quotation verification

How this was checked: every quotation in the body was run through the Founders engine quote check (engine/quotecheck.py, check()) against the cited passage text on the Spark, CPU only, on 2026-10-06: 26 of 26 quotation instances passed (19 from the founders corpus, 6 from No-America and 1 from the Declaration), 0 failed. My own quotations were checked by the same function against the No-America manuscript line or Declaration paragraph cited.

Not quoted because the opinions are not in the corpus: the 2019-2026 rulings (Trump v. Sierra Club, Alabama Association of Realtors v. HHS, NFIB v. OSHA, Biden v. Nebraska, Trump v. CASA, Learning Resources v. Trump, Trump v. Illinois, Trump v. Barbara); their holdings are paraphrased from the briefs and cited in the source notes. Ex parte Milligan’s “law for rulers and people” appears in the corpus only as quoted inside later opinions, so it was not used. Locke’s sec. 162 sentence on weak princes spans two corpus passages and was not used. The Federalist No. 70’s phrase on “safety in the republican sense” is split by a stray space in the corpus text, so Q10 begins after it.