The NYU Brennan Center for Justice recently published a valuable report entitled "Seven Solutions to Rein In Abuses of Executive Power." The Brennan Center is well to the left of me. But I agree with the vast majority of their recommendations here. We do indeed have an overgrown executive, and it needs to be pared back. I particularly agree with the excellent section on constraining emergency powers:

With just a signature, presidents can declare a national emergency and unlock special powers contained in more than 130 statutory provisions. These run the gamut from the seemingly trivial to the near-dictatorial, including powers to shut down or take over communications infrastructure, freeze Americans' bank accounts, and control domestic transportation. They are intended for sudden, fast-moving crises that Congress can't address quickly or flexibly enough. But presidents of both parties have stretched the meaning of "emergency" far beyond reason, enabling them to draw from a growing stockpile of statutory authorities with few real safeguards.

There are currently 51 active states of emergency, and the longest-running has lasted 47 years.¹⁰ Any emergency that persists for generations is, by definition, not an emergency; it's a problem that can be addressed through ordinary lawmaking. Yet presidents have used emergency powers to bypass Congress and unilaterally advance their policy goals.¹¹

The National Emergencies Act once allowed Congress to terminate emergencies with a simple majority vote and without the president's signature. But the Supreme Court struck down that procedure, known as a legislative veto, in 1983. Today, ending an emergency effectively requires a two-thirds majority in both chambers to override a presidential veto.

Congress should amend the National Emergencies Act to constrain executive overreach.¹² Emergency declarations should expire automatically after 30 days unless Congress approves a one-year extension, renewable annually with Congress's assent. And presidents should be required to share detailed reports on their uses of emergency powers. Proposals along these lines have received widespread bipartisan support, with versions of these reforms overwhelmingly passing out of the relevant House and Senate committees in 2024.¹³

Additionally, Congress should amend specific emergency statutes whose extensive delegations of power and inadequate safeguards make them susceptible to misuse. Of particular concern is the International Emergency Economic Powers Act, the most frequently invoked presidential emergency authority.¹⁴ Sanctions imposed under this law can equate to a "financial death sentence" lasting years or decades.¹⁵ Although the Supreme Court blocked Trump's effort to use the law to set global tariffs, the potential for other abuses remains.

I completely agree, and have previously advocated similar reforms, myself. Brennan is right that IEEPA should be tightened up. While the Supreme Court did rule (in a case I helped litigate) that IEEPA cannot be used to impose tariffs, it still includes a lot of other dangerous powers.

I would add, as I did in this article, that invocations of emergency powers should be subject to  nondeferential judicial review, to ensure that they are used only in the event of genuine emergencies, not bogus ones. Congress would do well to amend relevant emergency statutes to make clear that such nondeferential judicial review is available.

I also strongly endorse Brennan's recommendations on constraining laws governing the domestic use of the military. The Supreme Court did strike down Trump's attempts to use bogus pretexts for federalizing the National Guard; the Ninth Circuit recently reinforced that ruling by rejecting the administration's broad definition of what qualifies as a "rebellion" justifying federalization. But, as the Brennan report indicates, there is still a lot of potential for abuse, especially when it comes to the Insurrection Act.

I also agree with the Brennan report's advocacy of constitutional amendments eliminating presidential immunity from criminal liability for acts undertaken in office, and barring him from pardoning crimes committed by" members of their inner circle, including immediate family members and senior administration officials" and those "convicted of crimes ordered by the president or committed on the president's behalf."

I doubt that these amendments have much chance of being enacted, given the extreme difficulty of passing any constitutional amendment. On the other hand, the reforms to emergency powers and domestic use of the military can be adopted through ordinary legislation. In some cases, they can also be bolstered by stronger judicial review under existing laws and provisions of the Constitution.

I do have a few disagreements with the report. For example, it is not clear to me that the Supreme Court's decision in Trump v. Slaughter goes as far as the authors suggest. The decision's scope remains uncertain. Among other things, it's not clear how wide a range of federal agencies it applies to and how to reconcile it with Trump v. Cook, decided on the same day. I also think they may overestimate Slaughter's impact, since most federal agencies are already not independent in the sense that there are legal constraints on the presidents' power to fire their heads.

I would also have liked to see more recognition that curbing excessive executive power requires curbing the scope of federal power generally. It is virtually impossible to have a federal government that regulates almost every aspect of human activity without simultaneously delegating vast - and often dangerous - discretion to the executive.

That said, the vast majority of the Brennan report's recommendations are well-taken. I hope future Democratic administrations and members of Congress act on them.

For those keeping score, it's worth noting that Brennan Center emergency powers expert Elizabeth Goitein, one of the authors of the report, is a long-time critic of abuses of emergency powers under Democratic administrations, as well as Republican ones. For example, she condemned President Biden's attempt to use emergency powers to effectuate massive student loan forgiveness. And so did I.

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On October 23, in the case of Newsom v. Trump, the US Court of Appeals for the Ninth Circuit ruled Donald Trump's June 2025 federalization of the National Guard in Los Angeles was likely illegal. This decision has little immediate effect, because the National Guard deployment ended months ago, after the Supreme Court ruled against Trump in a related Illinois case. But it has important implications for judicial review of executive invocation of emergency powers to use the military domestically. Among other things, it emphasizes that such actions are reviewable, and the president should get only limited deference. It also adopts a properly restrictive definition of "rebellion" (which is one of the conditions that might justify federalization of the National Guard).

Trump federalized the Guard in response to anti-ICE protests. The district court ruled his action was illegal and issued an injunction blocking it. But the Ninth Circuit lifted the preliminary injunction, in a decision I criticized at the time.

The relevant statute 10 U.S.C. Section 12406, can only be used to federalize state forces in one of the following situations:

1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or

(3) the President is unable with the regular forces to execute the laws of the United States

Last year, the Ninth Circuit ruled (incorrectly, I think) that Trump's action might have been permissible under Subsection 3: a situation where "the President is unable with the regular forces to execute the laws of the United States." As the Ninth Circuit acknowledges in their most recent decision, this basis for Trump's actions was undermined by the Supreme Court's December ruling in the related case of Trump v. Illinois, which held that Subsection 3 can only be invoked when the president is authorized to use regular federal military forces to enforce the law, and those forces are inadequate. These circumstances do not apply to the anti-ICE protests in Los Angeles and Chicago.

No one claims that the situation in Los Angeles amounted to an "invasion" by a "foreign nation." Thus, in its most recent decision the Ninth Circuit considered whether Trump's actions were authorized by Subsection 2, which allows federalization of the guard when "there is a rebellion or danger of a rebellion against the authority of the Government of the United States."

The majority opinion by Judge Jennifer Sung holds that the determination that there is a "rebellion" is subject to judicial review and can be invalidated " if it "did not reflect a colorable assessment within a range of honest judgment." I think this is overly deferential. For reasons I outlined in an article published last year, there should be little or no deference when the executive invokes extraordinary emergency powers. Still, the Ninth Circuit standard is far from a blank check, and does allow invalidation of executive actions where the claim of rebellion is blatantly wrong - as it was here.

Following the district court, the Ninth Circuit defined  "rebellion" as "a violent, armed, organized, open and avowed uprising against the government as a whole." This differentiates "rebellion" from smaller-scale violence or other violations of law. I think that definition is largely correct. The court summarizes a wide range of historical evidence supporting it.

The Ninth Circuit also concluded that events in Los Angeles did not even come close to meeting that standard. There were some violations of law by protestors, and some small-scale violence. But no systematic effort to overthrow the government or anything close to it. If anything, both this issue and the definition of "rebellion" are easier calls than the court suggests.

Judge Sung, author of the majority opinion, is a liberal Biden appointee. But her opinion was joined by Judge Eric Miller, a conservative Trump appointee and onetime clerk for Supreme Court Justice Clarence Thomas. This suggests the issue here cuts across ideological and jurisprudential lines. Judge Mark Bennett, another Trump appointee, dissented, but mostly on procedural grounds.

Judge Bennett did also take issue with the majority's conclusion that if Trump's federalization of the National Guard exceeded his statutory authority, it also violated the Tenth Amendment, which reserves to the states or to "the people," those "powers not delegated to the United States by the Constitution." He argues that the power to call forth the National Guard is delegated to Congress by the Calling Forth Clause of the Constitution, which gives Congress power "[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." This is true enough. But in situations where Congress has not exercised that authority, states retain total control over their militia (of which the National Guard is the principal modern example), and that control is protected by the Tenth Amendment. Indeed, such control over state military forces is a central element of state sovereignty. Overriding it without proper constitutional authority qualifies as unconstitutional "commandeering" of state government forces. As the majority explains:

The federal government—whether the President or Congress—violates the Tenth Amendment by commandeering state personnel to enforce or administer federal law. Printz v. United States, 521 U.S. 898, 925 (1997) (Under the Tenth Amendment, "the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs."). If, for example, the President commandeered state police to help federal officers enforce federal immigration laws, that would violate the Tenth Amendment….

California National Guard members are state personnel, unless properly federalized… The President purported to convert the Guard into federal personnel by issuing federalization orders. If those federalization orders had been valid, then the President would have deployed federal officers in Los Angeles, and no commandeering of state personnel would have occurred. But because the President lacked authority to federalize the California National Guard, the federalization orders were invalid, and the deployed Guard members remained state personnel….

In other words, because the deployed members of the California National Guard were not properly federalized, they remained the legal equivalent (for Tenth Amendment purposes) of the state police. And because the challenged executive orders compelled those state officers to help federal officers enforce federal law, the orders violated the Tenth Amendment….

The Tenth Amendment protects States against overreach by the "Federal Government," whether "by legislation or executive action." Printz, 521 U.S. at 925, 935. The President cannot command state officials to enforce federal law even if a federal statute would authorize him, under some other circumstances, to call those officials into federal service. If the statute did not authorize the President to federalize the California Guard members here…, then the federalization orders were invalid, the Guard members remained state personnel, and Defendants violated the Tenth Amendment by commandeering those state personnel to administer federal immigration laws.

Exactly so. The majority and dissent  consider a number of procedural issues, which I will not try to address. The majority also parses a variety of relevant precedents in detail. I may have more to say about some of them in future writings.

For the moment, this decision has little immediate effect. But it sets an important precedent in favor of judicial review of executive invocation of emergency powers, and on the meaning of "rebellion."

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