March 1, 2026
By Stephen Stofka
This Friday marked the 93rd anniversary of the burning of the Reichstag building in Berlin, the home of Germany’s Weimar Parliament. A month earlier, Adolph Hitler had been elected Chancellor, the Chief Executive in Germany’s Parliamentary system. In the aftermath of the fire, police found a communist sympathizer who was accused of starting the fire. The following day, Hitler urged President von Hindenburg to issue an emergency decree granting Hitler extraordinary powers to prevent a communist takeover of the German government. The decree suspended Constitutional liberties like freedom of speech and assembly, guarantees of private communications and protections from arrest. Within weeks, political opponents were arrested, press freedoms were crushed, and the constitutional order hollowed out (Source). The “emergency” ended twelve years later after the utter destruction of Germany and the deaths of as many as 8.8 million German soldiers and civilians (Source). This week I want to explore the many meanings of emergency.
A hospital emergency room treats conditions with many degrees of urgency. The Latin word emergere refers to anything that comes up suddenly. When they are busy, emergency room doctors perform triage, an assessment of the urgency of a condition or illness. Many years ago, I slipped on the ice and dislocated my shoulder. Urgent? The nurse glanced at my eyes, then held up two fingers. How many? Two, I said. What day is today? Friday, I answered. No concussion. Have a seat. I waited in pain for over three hours in an emergency room in the Bronx, while doctors treated knife stabbings, gun shot wounds, heart attacks, and other conditions deemed more urgent than a dislocated shoulder. I was surprised to learn that neither the degree of my pain nor the short time it would take to fix the problem was a consideration to the doctors and nurses that night. Learning lesson: do not get hurt.
In 1787, a Constitutional Convention met in Philadelphia to resolve a financial crisis. The country could not pay its bills, or make payments on the war debt it had sustained through the eight year war for independence from Britain. Foreign investment had slowed to a trickle. Because each state issued its own currency, foreign investors were subject to currency risk and volatile exchange rates. The federal government had no power to directly tax businesses or people and states often neglected to meet their share of payment for war debts, weakening the credit of the colonies. Congress had no power to regulate commerce so the states fought among themselves for control of interstate waterways. In 1786, several months before the convention, four thousand people rose up to protest Massachusetts’ tax laws. This uprising, known as Shay’s Rebellion, demonstrated the need for a new compact among the states (Source). The acronym SNAFU was invented during World War 2, but the term aptly describes post-independence America. Despite these crisis conditions, the Constitution does not contain any reference to emergency, crisis or exigency (Source).
Hitler’s seizure of power in Weimar Germany raises issues of constitutional design. How does a country respond to a genuine crisis without empowering political leaders with the power to destroy constitutional order? In Federalist No. 70, Alexander Hamilton argued for a unitary executive, a President who could swiftly marshal resources in case of an attack from a foreign power. In response to insurrections like Shay’s Rebellion, Hamilton wanted a President who could restore domestic civil order (Source).
Carl Schmitt (1888 – 1985), a German conservative judge, argued in his 1922 book Political Theology that emergencies reveal the political structure underlying the ordinary norms in a country. He wrote that, in actuality, the sovereign is the person that decides when the rules can be broken (Source). Robert Bork (1927 – 2012) was a strong proponent of what is called the unitary executive, a President who has supreme power in the executive branch. According to Bork, Congress has no constitutional power to limit the President’s executive powers (Source).
The conservative justices on the Supreme Court have decided several recent cases that support this expanded power, rejecting the idea that Congress can impose limits on a President’s ability to hire and fire officers in the executive branch. This year the court will decide whether to overturn the court’s 1936 precedent set in Humphrey’s Executor and allow President Trump to fire the head of the Federal Trade Commission (Source). What is the limit of that executive power? Can a President fire the head of the Federal Reserve and install someone who supports the President’s political agenda? Can a President declare an emergency and invoke extraordinary powers? What is the limit of executive authority?
In France’s Constitution, Article 16 allows the President of France to assume exceptional powers when the normal functioning of government is interrupted. Should the U.S. amend its Constitution to give some clarity to what an emergency is? If there were such an amendment, could the President suspend habeus corpus and other liberties when the Federal Government has a shutdown because of a budget fight in Congress? He could claim that the government is not functioning normally and take control. The U.S. relies on a political tension between the three branches of government rather than an explicit constitutional clarification of what constitutes an emergency.
During the Civil War, Abraham Lincoln suspended habeas corpus, arguing that the rebellion by the southern states made such a violation of individual liberty a necessity. Shortly after his inauguration in 1933, Franklin D. Roosevelt declared a national emergency and temporarily closed banks. Did Roosevelt have such a statutory power? Three days later, a Democratic Congress passed the Emergency Banking Act, effectively ratifying Roosevelt’s emergency decree. In 1952, in the midst of the Korean War, President Truman responded to a steelworker’s strike by declaring an emergency in which he nationalized the steel industry. Within two months, the Supreme Court ruled that he had exceeded his authority (Source).
In 1976, Congress passed the National Emergencies Act to check a President’s discretion to declare open-ended emergencies. According to the Act, the President must specify which statutory power they invoked during an emergency. Secondly, either house of Congress could unilaterally vote to end the emergency. Seven years later, in INS v. Chadha, the Supreme Court invalidated that unilateral power as unconstitutional (Source). After that decision, Congress had to pass a joint resolution subject to Presidential veto and a two-thirds majority to override that veto. With little effective oversight from Congress, any president could declare an emergency. Checks and balances be damned.
After the attacks of September 11, 2001, President George W. Bush declared a national emergency and claimed certain statutory powers under the National Emergencies Act. In April 2025, President Trump declared an emergency, not in response to a terrorist attack, but to persistent trade imbalances. What was the emergency? The need for Trump to exercise a discretionary power over other countries as he had done with contestants on the reality show The Apprentice. This month, the Supreme Court decided that Trump had exceeded his authority.
Emergency powers rarely disappear on their own. Once activated, they tend to be normalized. The extraordinary becomes routine. Surveillance powers expand. Administrative discretion widens. Political rhetoric justifies urgency. Democratic societies must be on guard against the temptations of power and the possibility of abuse. They must question whether the policy response is proportional to the danger and how long the response should last.
Constitutional safeguards cannot rely solely on the good faith of leaders. There must be effective institutional boundaries to check the desire for power. An executive can act with decisiveness in a true emergency but decisiveness has to be balanced with restraint or a country descends into autocracy. We want to tame rather than eliminate emergency power. I hope to see you next week.
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