Friction¹ in the U.S. government—meaning debates and disagreement about policy creation and implementation—can produce better policies, protect individual rights (by avoiding autocratic rule), and slow resort to war.² The Framers assumed that friction in policymaking was useful and that the creation of three separate but interdependent branches of government would be a key source of that friction. For emergencies that would demand an urgent response, the Framers envisioned that Congress could legislate to give the president the authority to deal with those emergencies while identifying the limits on and procedures for that response.³ 

But that paradigm for dealing with national emergencies has not always played out as envisioned. In the 1970s, the executive ran amok; widespread abuses included spying on Americans, Watergate, and attempts to assassinate foreign leaders. A highly motivated Congress stepped in to impose more friction. Congress cabined executive authorities and increased congressional oversight by passing statutes that regulated foreign intelligence surveillance, covert action, presidential war powers, and the executive’s excessive use of declared emergencies.

But in making these delegations to the executive, Congress did not intend to remove all friction from presidential uses of emergency powers.

Today, presidents often rely on two of these statutes to unlock emergency powers: the National Emergencies Act (NEA) and International Emergency Economic Powers Act (IEEPA). These statutes allow the president, when he concludes that certain exigent circumstances exist, to trigger preexisting delegations of authority and thereby avoid the normal policymaking friction that would accompany efforts to secure authorization in the moment. But in making these delegations to the executive, Congress did not intend to remove all friction from presidential uses of emergency powers. Instead, Congress designed the statutes to foster persistent friction, including through legislative veto provisions that allowed Congress, by concurrent resolution, to override presidential emergency declarations.

In 1983, the Supreme Court unwound this source of friction, holding in Immigration and Naturalization Service (INS) v. Chadha that legislative vetoes (including concurrent resolutions) are unconstitutional.⁴ In the wake of Chadha, Congress can only block presidential actions authorized in the NEA and IEEPA by acting through joint resolutions, which require a majority vote of both houses of Congress and presentment to the president. In practice, then, Congress needs a veto-proof majority to halt the president’s use of emergency powers. It is ironic that the key emergency powers statutes—intended to add ex post friction to presidentially declared emergencies—now empower the very frictionless action that Congress intended to cabin.⁵

Recent Trends 

Executive Branch 

Since Chadha, presidents have used the NEA and IEEPA extensively to unlock emergency powers and the reduced friction that accompanies them. In some cases, presidents have used emergency powers for issues that do not clearly fall within the statutes’ ordinary meaning. In 2015, for example, President Obama declared an IEEPA-based national emergency to deal with Venezuela, but a senior staffer then said, “The United States does not believe that Venezuela poses some threat to our national security.”⁶ In the second Trump administration, the president has imposed a 50 percent tariff on Brazil for its decision to prosecute former president Jair Bolsonaro,⁷ although the issue has no clear connection to a national security emergency as required by IEEPA. To unlock powers under the Alien Enemies Act, the president also declared that Tren de Aragua members have perpetrated an “invasion.”⁸ Broad interpretations of emergency statutes are tempting for presidents because, once invoked, they expand executive policymaking authority without friction.

Broad interpretations of emergency statutes are tempting for presidents because, once invoked, they expand executive policymaking authority without friction.

Congress 

Even if the post-Chadha state of affairs means that Congress must work harder to signal its disagreement with the president’s use of emergency powers, Congress is not powerless. In theory, it can summon veto-proof majorities to halt emergencies and defund activities it opposes, or the Senate can block presidential nominations, to name a few possibilities. Even without a veto-proof majority, Congress can pass joint resolutions and force the president to veto them, signaling congressional disapproval and increasing the political cost to the president of defying Congress.⁹ But the current Congress has not attempted to cabin Trump’s reliance on, and attempted expansions of, emergency powers in his second term.¹⁰ Even the limited friction Congress can create by convening hearings, investigations, and press conferences has been absent.

Courts 

Another obvious potential source of friction in presidential uses of emergency powers is the courts. However, the courts are often deferential to executive decisions related to foreign policy and national security.¹¹ In June 2025, the Supreme Court reiterated this approach in an Antiterrorism Act case, noting that the Court “will not . . . cavalierly interfere with the political branches’ delicate judgments on matters of foreign affairs” and that “when the Executive and Congress have spoken with one voice in that sphere, their coordinate action is supported by the strongest of presumptions and the widest latitude of judicial interpretation.”¹² 

Will the courts apply their traditional levels of deference to the Trump administration’s recent national security-related claims? Some lower courts have rejected or been skeptical of these claims.¹³ As these cases work their way through the courts, it is not yet clear how deferential the Supreme Court will be if—or, more likely, when—it confronts emergency powers–related issues such as tariffs and the Alien Enemies Act on its merits docket. The Court has shifted recently to be less deferential to administrative agencies and more demanding about how clearly Congress must speak when it delegates statutory authorizations to the executive branch,¹⁴ but the justices may treat foreign relations and national security differently,¹⁵ continuing a long and controversial history of foreign affairs exceptionalism.¹⁶

As these cases work their way through the courts, it is not yet clear how deferential the Supreme Court will be if—or, more likely, when—it confronts emergency powers–related issues such as tariffs and the Alien Enemies Act on its merits docket.

Conclusion 

At least in the near term, there seems to be little prospect of Congress or the courts introducing substantial friction into the executive’s use of emergency powers. Indeed, Congress has provided little friction in nonemergency settings, let alone when the executive claims that the United States faces a national security threat. This loss of friction reduces deliberation and compromise, consolidating executive power in a way that would have troubled the Framers. 

But Congress and the courts are not the only possible sources of friction for the executive branch. As we have explored in prior work, foreign governments, the private sector, and state and local governments that the executive targets for actions or whose help the executive needs to implement its preferred policies can also create productive friction.¹⁷ Time will tell whether such actors attempt to or succeed at adjusting the course of executive emergency policies.

Endnotes

1.

Deeks is the Class of 1948 Professor of Scholarly Research in Law and vice dean at the University of Virginia School of Law. Eichensehr is a professor of law at Harvard Law School. Eichensehr thanks the Harvard Law School Summer Research Program for financial support. 

2.

Ashley Deeks and Kristen Eichensehr, “Frictionless Government and Foreign Relations,” Virginia Law Review 118, no. 8 (2024): 1815–901.

3.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 652-53 (1952) (Jackson, J., concurring) (explaining the “technique within the framework of the Constitution by which normal executive powers may be considerably expanded to meet an emergency”—namely, that Congress can “[grant] extraordinary authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency”).

4.

462 U.S. 919 (1983).

5.

For an argument that the Chadha decision has had a particularly consequential impact during the Trump presidencies, see Josh Chafetz, “The Chadha Presidency,” July 21, 2025, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5360131.

6.

Gregory Korte, “White House: States of Emergency Are Just Formalities,” USA Today, April 9, 2015, https://www.usatoday.com/story/news/politics/2015/04/09/pro-forma-states-of-national-emergency/25479553/.

7.

Jack Nicas and Ana Ionovo, “What to Know About the New U.S.-Brazil Trade War,” New York Times, July 10, 2025, https://www.nytimes.com/2025/07/10/world/americas/trump-bolsonaro-brazil-tariffs.html. It is not clear what statute Trump is purporting to rely on as the basis for such tariffs.

8.

White House, “Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua,” March 15, 2025, https://www.whitehouse.gov/presidential-actions/2025/03/invocation-of-the-alien-enemies-act-regarding-the-invasion-of-the-united-states-by-tren-de-aragua/.

9.

For examples from the first Trump administration, see Kristen E. Eichensehr, “The Youngstown Canon: Vetoed Bills and the Separation of Powers,” Duke Law Journal 70, no. 6 (2021): 1245–320.

10.

One exception is Senate Joint Resolution 37, which passed the Senate but did not receive a vote in the House of Representatives. That resolution would have ended the national emergency proclaimed by President Trump in executive order 14193 (February 1, 2025), related to fentanyl imports and used to justify the imposition of tariffs on Canada. S.J. Res. 37, 119th Cong.

11.

Elizabeth Goitein, “The Alarming Scope of the President’s Emergency Powers,” The Atlantic, January/February 2019, https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/.

12.

Congressional Research Service, “Legal Authority to Repurpose Funds for Border Barrier Construction,” Report R45908, December 30, 2019, https://www.congress.gov/crs-product/R45908#:~:text=%C2%A7%202808.,otherwise%20unauthorized%20military%20construction%20projects.

13.

For an Alien Enemies Act case tracker, see Robert Parloff, “Alien Enemies Act Tracker,” Lawfare, updated June 20, 2025, https://www.lawfaremedia.org/projects-series/trials-of-the-trump-administration/tracking-trump-administration-litigation/alien-enemies-act-tracker. For lower-court decisions holding that the executive cannot use IEEPA to impose particular tariffs, see V.O.S. Selections, Inc. v. Oregon, No. 25-00066 (Ct. Int’l Trade 2025); Learning Resources Inc. v. Trump, No. 1:25-cv-01248 (D.D.C. May 29, 2025). 

14.

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) (overruling Chevron); West Virginia v. Environmental Protection Agency, 597 U.S. 697 (2022) (embracing the Major Questions Doctrine).

15.

See, e.g., Federal Communications Commission v. Consumers’ Research, 606 U.S. __ (June 27, 2025) (Kavanaugh, J., concurring) (asserting that “the major questions canon does not translate to” national security and foreign relations “contexts because of the nature of Presidential decision-making in response to ever-changing national security threats and diplomatic challenges”).

16.

See, e.g., Kristen E. Eichensehr and Oona A. Hathaway, “Major Questions About International Agreements,” University of Pennsylvania Law Review 172, no. 7 (2024): 1845–92, 1883–87, discussing foreign affairs exceptionalism.

17.

Deeks and Eichensehr, “Frictionless Government,” n. 1, at 1887–98.