An accelerating trend toward unilateral executive action has characterized the post-Cold War American presidency. Confronted with intense partisan polarization and the resulting legislative stalemate, presidents have increasingly resorted to the tools of direct authority—executive orders, memoranda, and proclamations—to bypass a gridlocked Congress and enact their policy agendas.¹

The most potent tool is the declaration of a national emergency. This action unlocks a litany of latent statutory powers, allowing a president to redirect funds, deploy military personnel, and regulate sectors of the economy with minimal immediate oversight. This practice represents a fundamental shift in the locus of policymaking, moving it from the deliberative, legislative sphere to the decisive, executive one. 

The expanding use of presidential emergency powers is an effect of the secular decline of public faith in the nation’s core democratic institutions. Decades of data indicate that citizens are losing confidence in our constitutional system of checks and balances to address pressing problems. This loss of confidence suggests that citizens become more amenable to leaders who promise to cut through procedural constraints, thereby rewarding unilateralism and further eroding the norms of deliberative democracy.² It creates a self-perpetuating cycle of distrust and overreach, in which each unilateral act delegitimizes the bypassed institutions, reinforcing public cynicism and increasing the political demand for executive action.³ 

This loss of confidence suggests that citizens become more amenable to leaders who promise to cut through procedural constraints, thereby rewarding unilateralism and further eroding the norms of deliberative democracy.

The perceived legitimacy of complementary governing institutions informally restrains the exercise of executive power in a constitutional democracy. The concept of “faith in institutions,” therefore, extends beyond approval or disapproval of specific personalities or policies. It is better understood as a reservoir of favorable attitudes and goodwill that helps an institution withstand periods of public discontent and legitimize its authority.⁴ This trust supports the system’s stability by fostering what Margaret Levi calls “quasi-voluntary compliance,” whereby citizens obey laws not just out of fear of coercion but because they believe in the fairness and legitimacy of the system that created them.⁵ It is precisely this diffuse support that has eroded across the American political landscape. 

In 2025, Gallup polling found that only 10 percent of Americans expressed a high level of confidence in Congress, a figure that reflects widespread perceptions of intractable gridlock and influence by wealthy interests.⁶ The judiciary, which has long been insulated from such deep public cynicism, has experienced a decline in its legitimacy. Confidence in the U.S. Supreme Court dropped to a near-historic low of 27 percent, a sharp decline driven by increasingly contentious confirmation processes and rulings that most of the public views as politically motivated.⁷ Even confidence in the U.S. military, a historically trusted institution, has diminished amid concerns about politicization; the Reagan National Defense Survey recorded a 25-point decline in public confidence from 2018 to 2023.⁸ Similar declines are seen in other social institutions, with confidence in higher education and organized religion falling to their lowest levels on record amid culture-war conflicts and internal scandals.⁹

This collapse of trust is both exacerbated by and contributes to extreme political polarization. The modern phenomenon is best characterized as “affective polarization,” in which partisan identity goes beyond policy disagreement to entail visceral dislike and distrust of an opposing political tribe.¹⁰ Institutional trust then becomes conditional; the legitimacy of the Supreme Court, the presidency, or even the electoral process itself is judged through the lens of whether one’s party is in control. This view poisons the well of diffuse support, allowing a president to readily frame coequal branches of government not as partners but as illegitimate partisan obstacles to be overcome by any means necessary.

Institutional trust then becomes conditional; the legitimacy of the Supreme Court, the presidency, or even the electoral process itself is judged through the lens of whether one’s party is in control.

The collapse of institutional legitimacy and the rise of affective polarization create a political incentive structure for presidents to govern by unilateral decree. When faced with an unresponsive or hostile Congress, a president can reframe a policy dispute as a national crisis, justifying the invocation of emergency powers to demonstrate decisive leadership to a frustrated political base. Presidents seek to consolidate their power by transforming a political problem into a security threat. The legal key to this approach is the National Emergencies Act of 1976—a post-Watergate statute intended to regulate and constrain emergency declarations—which has paradoxically become the primary vehicle for activating more than 130 dormant statutory powers that enable sweeping executive action with minimal legislative oversight.¹¹

The most immediate consequence of employing this tool is the distortion of national security priorities and the potential misallocation of finite defense resources. By invoking a national emergency, the president can subvert Congress’s most fundamental constitutional authority—the power of the purse—by reprogramming funds for purposes that the legislature has explicitly rejected. The 2019 declaration of a national emergency at the southern border serves as a stark example. This act authorized the diversion of $3.6 billion from the Department of Defense’s military construction budget away from specific infrastructure upgrades and instead toward funding a border wall.¹² This action also entailed the inefficient domestic deployment of thousands of National Guard and Reserve personnel, degrading military readiness by pulling units away from their primary warfighting competencies and politicizing the armed forces by using them as a backdrop for a domestic policy priority.¹³ This approach diverts not only money and personnel but also the finite bandwidth of the national security leadership for a political emergency rather than assessing genuine foreign threats. 

Beyond the misallocation of material resources, the normalization of governance by emergency poses a more insidious threat to the rule of law and civil liberties. Historically, powers invoked during a crisis have staying power, leading to a permanent expansion of state authority at the expense of individual rights.¹⁴ The invocation of emergency powers to implement travel bans based on national origin, for instance, set a precedent for restricting freedom of movement. Each time a manufactured crisis is declared, it lowers the threshold for future declarations, gradually eroding the constitutional guardrails designed to protect citizens from the arbitrary exercise of state power.

The normalization of governance by emergency poses a more insidious threat to the rule of law and civil liberties. Historically, powers invoked during a crisis have staying power, leading to a permanent expansion of state authority at the expense of individual rights.

The presidential recourse to emergency powers is not a sustainable solution to legislative gridlock but rather an accelerant of the institutional decay from which it springs. This dynamic creates a corrosive feedback loop, an equilibrium in which executive overreach, emerging from public distrust in democratic processes, serves to deepen that same distrust. In this cycle, the ostensible remedy for institutional failure—the decisive action of an assertive executive—becomes a primary driver of the underlying pathology, further eroding the legitimacy of the constitutional order.  

This destructive cycle functions through multiple reinforcing mechanisms. First, by trying to solve complex issues like immigration or the rise of China with blunt executive orders, the “emergency” actions often fail, which confirms the public’s view of government incompetence.¹⁵ Second, by bypassing the legislative process, the executive branch reinforces the idea that governance is more about exerting power than following procedures, undermining the “quasi-voluntary compliance” essential to the rule of law.¹⁶ Finally, the intense political and legal backlash that results from such actions turns courts and media into battlegrounds for zero-sum partisan fights.  

As a result, there is a normalization of crisis governance and the structural atrophy of coequal branches of government. A “ratchet effect” takes hold. Each president’s use of unilateral power sets a new, marginally lower threshold for its use by subsequent administrations, regardless of party.¹⁷ The extraordinary becomes the standard. The institutions that the presidents consistently bypass are losing their capacity and will to govern independently as a check and balance on executive power, making them less effective and making future executive action seem all the more inevitable.¹⁸ 

The institutions that the presidents consistently bypass are losing their capacity and will to govern independently as a check and balance on executive power, making them less effective and making future executive action seem all the more inevitable.

Legislative and judicial attempts to check this executive overreach have proven largely ineffective. In Congress, efforts to check the presidency after Watergate and the Vietnam War have fallen flat, as the War Powers Resolution, imposing a 60-day limit on unauthorized military deployments, has yet to be used effectively, rendering it impotent. Meanwhile, the Supreme Court has established a Major Questions Doctrine, which holds that Congress must clearly delegate changes made by executive agencies with major economic or political impact to the executive. But it remains unclear whether the Court will hold this doctrine for national security delegations or whether it will avoid assessing the merits of declaring an emergency in cases such as the president’s use of the International Emergency Economic Powers Act for tariffs or the Alien Enemies Act for deportations. 

This body of precedent, built upon the failure of institutional checks, can then be wielded by future presidents to justify even more expansive claims to power.

Endnotes

Stam is a Miller Center faculty senior fellow and University Professor, professor of public policy and politics, and former dean of the Frank Batten School of Leadership and Public Policy at the University of Virginia.

1.

William G. Howell, Power Without Persuasion: The Politics of Direct Presidential Action (Princeton, NJ: Princeton University Press, 2015). See also, Sarah A. Binder, Stalemate: Causes and Consequences of Legislative Gridlock (Washington, DC: Brookings Institution Press, 2003). 

2.

William G. Howell and Terry M. Moe, Presidents, Populism, and the Crisis of Democracy (Chicago: University of Chicago Press, 2020), 45–68.

3.

Jules Lobel, “Emergency Power and the Decline of Liberalism,” Yale Law Journal 98, no. 7 (1989): 1385–433. 

4.

David Easton, A Systems Analysis of Political Life (New York: Wiley, 1965), 273–74.

5.

Margaret Levi, Of Rule and Revenue (Berkeley: University of California Press, 1988), 52–60.

6.

Gallup, “Confidence in Institutions,” July 2025, https://news.gallup.com/poll/1597/confidence-institutions.aspx.

7.

Jeffrey M. Jones, “Confidence in U.S. Supreme Court Sinks to Historic Low,” Gallup, June 23, 2022, https://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx.

8.

Ronald Reagan Presidential Foundation and Institute, “Reagan National Defense Survey,” November 2023, https://www.reaganfoundation.org/reagan-institute/centers/peace-through-strength/survey/reagan-national-defense-survey-2023. The survey shows that the percentage of Americans with a “great deal of trust and confidence” in the military dropped from 70 percent in 2018 to 45 percent in 2023.

9.

Claudia Deane, “Americans’ Deepening Mistrust of Institutions,” Pew Research Center, October 17, 2024. https://www.pew.org/en/trend/archive/fall-2024/americans-deepening-mistrust-of-institutions.

10.

Shanto Iyengar, Gaurav Sood, and Yphtach Lelkes, “Affect, not Ideology: A Social Identity Perspective on Polarization,” Public Opinion Quarterly 76, no. 3 (2012): 405–31.

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.

Peter D. Feaver and Richard H. Kohn, eds., Soldiers and Civilians: The Civil–Military Gap and American National Security (Cambridge, MA: MIT Press, 2001).

14.

Feaver and Kohn, Soldiers and Civilians. Lobel, “Emergency Power.” See also, Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2004).

15.

Horst W. J. Rittel and Melvin M. Webber, “Dilemmas in a General Theory of Planning,” Policy Sciences 4, no. 2 (1973): 155–69.

16.

Tom R. Tyler, Why People Obey the Law (Princeton, NJ: Princeton University Press, 2006).

17.

Tyler, Why People Obey; Howell, Power Without Persuasion, 15–25.

18.

Binder, Stalemate, 5–12.