Democracy Under Siege: Congress Must Act to Stop Presidential Abuse of Emergency Powers

Aug 29, 2025

As presidential emergency powers creep into everyday policing and politics, Congress is sleepwalking through a constitutional stress test it’s supposed to administer.

Presidential “emergency” authorities were built for earthquakes and invasions, not for shortcutting local democracy or strong‑arming states. Yet the tools are there—and alarmingly easy to misuse—thanks to a National Emergencies Act that lets presidents unlock more than a hundred special powers with minimal oversight, then dare Congress to muster a veto‑proof majority to stop them.1 Illinois officials are already bracing against threats to send National Guard troops to Chicago, calling the plan baseless and unlawful.2 If this sounds like a bad sequel to 2020, that’s because the loopholes never got fixed.3

The emergency‑powers toolbox is overflowing—and under‑guarded

Congress has delegated 130+ statutory authorities that can be triggered by a presidential emergency declaration; many are broad, opaque, or outdated.4
Under the National Emergencies Act, presidents can renew emergencies indefinitely unless Congress terminates them—an action that, in practice, requires a two‑thirds majority to override a likely veto.5
Constitutional law 101: the president has no free‑floating “emergency” power—actions must rest on statute or the Constitution and are subject to judicial review.6
Legal scholars underscore the point succinctly: “Emergencies do not expand constitutional power”.7

Quote: “Emergencies do not expand constitutional power.” — Hoover Institution commentary (5/8/2020) 8

National Guard at home: not a presidential “blank check”

The main guardrails: Posse Comitatus bars federal troops from domestic policing; the Insurrection Act is the big exception—but it’s vague and ripe for misuse.9
Title 32 deployments require governor cooperation; presidents can request, not compel, state Guard units for certain missions.10
In 2020, out‑of‑state Guard forces were used for law enforcement in Washington, D.C., exploiting a District‑specific gap; that playbook can’t simply be replicated in a non‑consenting state.11
Even experts pushing reform call the Insurrection Act’s breadth a direct threat to democratic checks and civil liberties.12

Quote: The president’s power to call out the National Guard is “not a blank check.” — Brennan Center analysis (2020) 13

Chicago fights back: “No legal basis” for a Guard deployment

Illinois Attorney General Kwame Raoul says there is “no legal basis” for deploying the National Guard to Chicago, signaling a courtroom fight if necessary.14
Governors can refuse Title 32 requests; absent Insurrection Act invocation that meets strict statutory criteria, federal attempts to force Guard policing run into the law—and the courts.15
State and local leaders warn that a federally led show of force would be uncoordinated, unsound, and unlawful—undermining local public safety strategy.16

Quote: “No legal basis.” — Illinois Attorney General Kwame Raoul, NBC Chicago (Aug. 2025)17

Congress’s job description: Fix the laws you wrote

Brennan Center testimony urges Congress to require any emergency declaration to end after 30 days unless affirmatively approved by both chambers, with public reporting and oversight of secret emergency action documents.18
The ARTICLE ONE Act (118th Congress) would force that 30‑day approval vote and end the era of “declare and forget” emergencies.19
Reform proposals also target the Insurrection Act: tighten definitions, limit duration, require notice and reporting, and enable judicial review.20
Bottom line from nonpartisan experts: the NEA and Insurrection Act must be modernized to prevent abuse while preserving true crisis response capacity.21 22

What it means

Here’s the accountability translation: Congress left the back door ajar, and presidents learned to sprint through it. The legal “cheat codes” exist because lawmakers built them—and then never patched the game. If the White House can flip on extraordinary powers for ordinary politics, you don’t have coequal branches; you have executive government with a side of legislative commentary. Pretending the Insurrection Act is a scalpel when it’s a sledgehammer is how democracies bruise. And yes, making the president ask permission after 30 days is the bare minimum. If that feels radical, the problem isn’t reform—it’s how accustomed we’ve grown to shortcuts.

What’s next

Watch for emergency‑powers reform reintroduction (ARTICLE ONE‑style bills) and hearings that force on‑the‑record positions from House and Senate leadership.23
Track any attempt to stretch Title 32 in states that refuse cooperation; litigation would follow swiftly, with governors and AGs seeking injunctions.24
Civil society will keep pressure on: nonviolent noncooperation and coordinated civic action continue to scale in 2025, not shrink.2526

Tell your U.S. Representative and Senators to co‑sponsor and publicly back a 30‑day approval rule and Insurrection Act reforms: read the ARTICLE ONE framework on Congress.gov, then call and email their offices today.27

Get smart, fast: read the Brennan Center’s guide to emergency powers and its Insurrection Act explainer; share them in your networks.2829
If you’re in Illinois (or any targeted state), thank your AG and governor publicly for defending state authority and the rule of law; urge transparent litigation plans.30

Reader question: If Congress must vote to extend any emergency after 30 days, what specific safeguards (reporting, judicial review, scope limits) would you insist on before approving?

Methods & Verification

We used OSINT/public records, legal analyses, and local reporting; we cross‑checked statutory claims across multiple nonpartisan legal sources and verified on‑the‑record statements from state officials. Open questions: 1. precise timelines for congressional action in the current session? 2. whether the White House will test Title 32 in non‑consenting states?

Waging Nonviolence. “Resistance is alive and well in the United States.” (3/19/2025). https://wagingnonviolence.org/2025/03/resistance-alive-well-us/

Brennan Center for Justice. “Emergency Powers.” https://www.brennancenter.org/issues/bolster-checks-balances/executive-power/emergency-powers

Waging Nonviolence. “Resistance is alive and well in the United States.” (3/19/2025). https://wagingnonviolence.org/2025/03/resistance-alive-well-us/

Brennan Center for Justice. “Testimony on Reforming the National Emergencies Act” (5/22/2024). https://www.brennancenter.org/our-work/research-reports/testimony-reforming-national-emergencies-act-senate-committee-homeland

Hoover Institution. “Emergencies Do Not Expand Constitutional Power” (5/8/2020). https://www.hoover.org/research/emergencies-do-not-expand-constitutional-power

Brennan Center for Justice. “The Insurrection Act: A Presidential Power That Threatens Democracy.” https://www.brennancenter.org/our-work/analysis-opinion/insurrection-act-presidential-power-threatens-democracy

Brennan Center for Justice. “The President’s Power to Call Out the National Guard Is Not a Blank Check.” https://www.brennancenter.org/our-work/analysis-opinion/presidents-power-call-out-national-guard-not-blank-check

Lawfare Media. “What Made Trump’s Protest Response in D.C. Unique?” https://www.lawfaremedia.org/article/what-made-trumps-protest-response-dc-unique

NBC Chicago. “Raoul: Trump Has No Legal Basis for National Guard Deployment to Chicago.” (Aug. 2025). https://www.nbcchicago.com/news/local/chicago-politics/raoul-trump-has-no-legal-basis-for-national-guard-deployment-to-chicago/3814748/

CNN. “As Trump administration unleashes federal show of force in DC, other US cities on president’s radar push back” (08/23/2025). https://www.cnn.com/2025/08/23/us/us-cities-trump-dc-police

Elizabeth Goitein, Senior Director, Brennan Center. “Testimony on Reforming the National Emergencies Act” before the Senate Committee on Homeland Security and Governmental Affairs (5/22/2024). https://www.brennancenter.org/our-work/research-reports/testimony-reforming-national-emergencies-act-senate-committee-homeland

Congress.gov. H.R.3988—ARTICLE ONE Act (118th Congress). https://www.congress.gov/bill/118th-congress/house-bill/3988

Cornell Law School, Legal Information Institute (Wex). “Emergency Powers.” https://www.law.cornell.edu/wex/emergency_powers

Congress.gov. H.R.3988—ARTICLE ONE Act (118th Congress). https://www.congress.gov/bill/118th-congress/house-bill/3988

Waging Nonviolence. “Resistance is alive and well in the United States.” (3/19/2025). https://wagingnonviolence.org/2025/03/resistance-alive-well-us/

Waging Nonviolence. “What to do if the Insurrection Act is invoked.” (4/2025). https://wagingnonviolence.org/2025/04/what-to-do-if-the-insurrection-act-is-invoked/

Congress.gov. H.R.3988—ARTICLE ONE Act (118th Congress). https://www.congress.gov/bill/118th-congress/house-bill/3988

Brennan Center for Justice. “A Guide to Emergency Powers and Their Use.” https://www.brennancenter.org/our-work/research-reports/guide-emergency-powers-and-their-use

Brennan Center for Justice. “The Insurrection Act Explained.” https://www.brennancenter.org/our-work/research-reports/insurrection-act-explained

Democracy Under Siege: Congress Must Act to Stop Presidential Abuse of Emergency Powers

The emergency‑powers toolbox is overflowing—and under‑guarded

National Guard at home: not a presidential “blank check”

Chicago fights back: “No legal basis” for a Guard deployment

Congress’s job description: Fix the laws you wrote

What it means

What’s next

Methods & Verification

Discussion about this post