Trump’s Manufactured Emergencies

Over the past ten days, numerous media outlets, YouTube videos, Substack newsletters, and podcasts have eloquently articulated numerous reasons to condemn President Trump’s authoritarian takeover of D.C. policing. Now that in some sense the dust has settled, it would behoove us to think about what it portends for the future.

In fact, the Trump administration’s actions in D.C. represent the continuation of interconnected political and rhetorical tactics that the president has used since his second inauguration that we should expect to see again and again – using misleading or downright fabricated information as the basis for declaring an emergency, relying on the fabricated emergency to invoke emergency legal authorities, and then relying on those authorities to take actions that exceed even the broad powers that such emergencies confer under the law. Looking ahead, we can expect the administration to run this same playbook in additional, predictable ways.

Serial Invocations of Emergency Power and Fabricated Versions of Reality

As others have documented, several of President Trump’s central policy priorities rely on imaginary facts to aggrandize presidential power.  Take the “Liberation Day” tariffs. To impose radically inflated tariff levels on international trade, Trump invoked the International Emergency Economic Powers Act (IEEPA), which provides that if the president declares a national emergency due to an “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States,” he may take various actions in response (none of which are related to tariffs).  According to Trump, the emergency that required taking such extraordinary measures are “large and persistent annual U.S. goods trade deficits” with America’s trading partners.  Not only are such deficits, according to economists, non-problematic, but they are also so long-standing that it is hard to consider them an “emergency” under any reasonable definition of the word. Moreover, even if the preconditions justifying use of IEEPA did in fact exist, multiple courts have determined that IEEPA simply does not authorize imposition of tariffs under any circumstances.

The use of the Alien Enemies Act (AEA) to deport Venezuelans alleged to be part of a violent criminal gang (Tren de Aragua or TdA) followed a similar pattern. The AEA provides that in times of “a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion . . . by any foreign nation or government, . . . all natives, citizens, denizens, or subjects of the hostile nation or government . . . shall be liable to be apprehended, restrained, secured, and removed as alien enemies.” To justify invoking the Act, President Trump’s proclamation identified TdA as part of a “hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States” in the form of drug trafficking and illegal migration. Even accepting the dubious proposition that gang activity can ever serve as a sufficient predicate for using the AEA – designed and always employed (until now) strictly as a war measure – Trump’s assertion that TdA was acting in concert with the Venezuelan government came in direct contradiction to the conclusions of Trump’s own intelligence community. Finally, even if the AEA was properly invoked, the Supreme Court has held that it guarantees the use of some procedure by which alleged alien enemies may contest the allegation that they are, in fact, members of the relevant group.  During WWII, for example, the U.S. government afforded those believed to be German or Italian citizens the opportunity to demonstrate that they were not. Until the Supreme Court disabused him of the lawfulness of this position, Trump claimed the power to effect AEA removals without any procedural mechanism to sort members of TdA from other Venezuelan citizens.

And then there is the militarization of law enforcement through use of the National Guard and members of the military or, in the case of D.C., taking over the local police entirely.  In Los Angeles, Trump relied on a statute permitting the president to mobilize National Guard troops  into federal service when there is an invasion, a rebellion, or the “President is unable with the regular forces to execute the laws of the United States.”  And in D.C., a provision of the city’s Home Rule Statute provides that “whenever the President of the United States determines that special conditions of an emergency nature exist which require the use of the Metropolitan Police force for federal purposes,” he may employ their services for a limited time. As others have exhaustively documented, the protests in Los Angeles fell far short of requiring military intervention, while the crime in D.C. is at a 30-year low.

Manufacturing Facts

As anyone who recalls Trump’s first term knows, his reliance on “alternative facts” is nothing new.  Moreover, he has always been abetted in his efforts to remake reality by the right-wing propaganda machine. Perhaps nothing demonstrates this more starkly than “the big lie,” the idea that President Trump actually won the 2020 presidential election. Despite the demonstrable falsity of that information (based on numerous investigations), at least one poll shows that just 62% of Americans and 31% of Republicans believe Biden’s win to be legitimate.

The difference going forward is that his knack for laundering alternative facts into something he can call “news” has been turbocharged by his control over the levers of power – control that a Republican-controlled Congress has thus far declined to constrain.  Consider what happened when the Bureau of Labor Statistics (BLS) released data indicating a weakening in the U.S. job market.  Labeling the data “rigged” (in the absence of any evidence to support the claim) he fired the Bureau’s commissioner and selected a loyalist to take her place in an agency historically led by non-partisan technocrats. National Economic Advisor Kevin Hassett said that “the president wants his own people” at the BLS – purportedly to make the numbers “more transparent and more reliable.”  And while I’m not qualified to opine on the question whether the BLS’s recent performance can be improved upon, as people like Hassett have argued, I fully expect that the more “transparent” and “reliable” numbers we’re going to see come out of that office will support a claim that President Trump is presiding over the strongest economy in American history, regardless of whether that claim conforms to reality. This is particularly true given the consensus among progressive and conservative economists alike that the individual Trump has tapped for the position is singularly unqualified for the job.

A similar effort to employ government officials to call into question data that does not support Trump’s preferred narrative is also afoot in D.C. Given the significant amount of pushback the troop deployments have elicited based on the inconsistency between Trump’s claim that D.C. is facing a violent crime wave and the actual data, the Justice Department has launched an investigation seeking evidence that D.C. officials falsified crime reporting data to show a reduction in crime.  The mere announcement of such an inquiry, as Trump well knows, undermines faith in the official crime numbers, making what had been a clearcut misstatement of facts appear more plausible.

So undesirable facts are modified, undermined, or simply suppressed entirely. At the same time that Trump administration officials are claiming powers to defy congressional spending instructions in ways not seen since the Nixon Era, the White House budget office took down the website that tracks exactly how the executive actually apportions (approves or directs the spending of) the funds that Congress has appropriated. That website, a statutorily required mechanism for posting that information established, was restored in recent days to comply with a court order, though it is not clear whether all of the information required to be disclosed is included. Indeed, both Democratic and Republican Senators are sufficiently concerned about this administration’s willingness to ignore congressional appropriations law that they are including instructions regarding how the money should be spent, which have traditionally been contained in guidance documents, into the actual text of budget legislation.

What the Future Holds

So, what does this history tell us about the future?  First and foremost, expect the president to militarize policing – using National Guard, active-duty military, militarized federal law enforcement, or some combination of the three – in many American cities across the nation (especially cities with large minority populations and Democratic leadership). As legal experts have pointed out, federalizing law enforcement in New York is not as easy as doing so in Washington D.C. for a couple of reasons. The first is the unique nature of Washington D.C. and its National Guard contingent, which gives the president much more leeway in employing National Guard troops and federal law enforcement for tasks typically left to state and local officials. Second is the Posse Comitatus Act (PCA), which bars active-duty military personnel from engaging in domestic criminal law enforcement. Nevertheless, as Trump and his enablers well know, there are several mechanisms available that would allow him to take actions similar to the ones ongoing in other American cities.

One such mechanism was already on display in Los Angeles.  There, the president federalized the California National Guard in order to have them carry out a federal mission. Because they were federalized, those National Guard troops were barred by the PCA from engaging in domestic law enforcement, but they were able (along with the marines that were deployed with them) to protect federal officials and federal property.

But a much more straightforward answer comes from the Insurrection Act. The Insurrection Act, an exception to the PCA, allows the president to employ the military when “the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States” in the normal fashion or when “insurrection, domestic violence, unlawful combination, or conspiracy” hinders or obstructs the execution of the laws. This Insurrection Act is famously broad and reposes a great deal of discretion regarding when to use it with the president himself.  As a result, the primary constraint against using it has been more political than legal. A president willing to declare an economic emergency in order to impose tariffs and to declare gang activity an invasion to invoke the Alien Enemies Act is not going to see traditional political norms against domestic deployment of the military as much of a barrier to use of the Insurrection Act. All he needs is one attempted carjacking to declare that the execution of the laws is being obstructed, invoke the Insurrection Act, and send in the troops wherever he wants them. Indeed, we know that concern about crime is just a pretext for the federalization of D.C.’s law enforcement. A sincere concern for crime would not concentrate the actual troop deployments in highly visible, tourist areas of D.C. rather than high crime neighborhoods that might actually benefit from them. And while the exact contours of the Insurrection Act’s authorities are contested, efforts to narrowly construe them would likely be met with the same level of  resistance the administration has exhibited in other challenges to its authority.

Indeed, we know that he has long wanted to do this.  As far back as 2020, President Trump sought to invoke the Insurrection Act in response to Black Lives Matter protests.  More recently we have seen Trump as well as other government officials suggest widespread use of the military in major U.S. cities. And the Pentagon has apparently drafted an entire memo setting out a plan for such deployment. Perhaps even more telling, Phil Hegseth, brother of the current Secretary of Defense and current official at the Department of Homeland Security (DHS), drafted a letter advocating for a larger military role in the “homeland security mission.”

The presence of troops on the streets is unlikely to be the only use of faux emergencies to exercise very real emergency powers (and beyond) going forward. Rather, I suspect we will see it in an area to which Trump already has shifted his attention: elections. As noted above, if ever there was an area where President Trump found remarkable success in defining his own version of reality – it is in the context of elections. Trump’s recent attack on the integrity of mail-in ballots and his “authoritarian fan fiction” claim that when it comes to elections, states are merely the agents of the federal government demonstrate his willingness to redefine reality so as to advantage Republicans in elections going forward.

Nor should we be surprised if these two contexts converge, with efforts to employ troops at polling places to influence election outcomes. Anxiety about this possibility ran high prior to the 2020 election. Fortunately, the concern at that time was overblown, at least in part because Mike Milley, Chairman of the Joint Chiefs of Staff at the time, made clear that he saw no role for the military in elections. In Trump 2.0, however, people like Milley have been replaced with sycophants who have to date shown no appetite for questioning the party line. And as the announcement about mail-in ballots and the insistence on mid-district redistricting in Texas and perhaps beyond to squeeze out more Republican seats in the House of Representatives indicate, this administration does not plan to sit idly by and allow elections it is likely to lose go forward.  The law in this area essentially mirrors the PCA/Insurrection Act structure. There is a general prohibition on members of the Armed Forces interfering in elections as well as a bar on having troops at the polls.  If, however, “force be necessary to repel armed enemies of the United States,” the Armed Forces may intervene. We should not be surprised if the president discovers on voting day that such force is, in fact, necessary – at least in precincts that lean heavily democratic.

Conclusion

These outcomes are not inevitable. Rather, as they say, “forewarned is forearmed.”  The transparency and predictability of Trump’s tactics provides those who oppose them an opportunity to prepare to respond effectively.  So, while it is crucial to protest and criticize each individual authoritarian step this administration takes, we should not lose the forest for the trees. Each objectionable policy is another instantiation of President Trump’s determination to redefine reality so as to maximize his own power to pursue what he believes to be in his (not America’s) best interests.