Learning Resources v. Trump was a big deal. The Supreme Court held the President could not rely on an emergency statute, the International Emergency Economic Powers Act (IEEPA), to impose his universal tariffs or any tariffs at all. The Court’s rebuke of the President on the eve of the State of the Union address had dramatic economic consequences. Thousands of refund claims for unlawfully collected tariffs were immediately filed in the Court of International Trade. CBP estimates it will have to refund roughly $166 billion in unlawfully collected duties.

The commentariat has mostly focused on what the ruling portends for President Trump’s tariff policies. The justices’ fight about the major questions doctrine got a lot of airtime too. In a recent paper, The New Emergency Law, I place the decision in a broader context. I argue that Learning Resources is the starkest example yet of a shift in how courts treat executive use of statutory emergency authority. Traditionally, courts largely sided with the executive when it invoked one of the many emergency statutes in the U.S. Code. Foreign affairs exceptionalism, extra broad interpretations of national security delegations, and crisis logic all contributed to that judicial posture. But executive practice has changed in ways that invited greater judicial scrutiny. As executive emergency action became untethered from emergencies in the ordinary meaning of the term, courts grew more willing to question it.

This shift in judicial approach appears to transcend naked partisanship. Despite common critiques of this Supreme Court as aggressively presidentialist and overtly partisan, the statutory emergency space is one area in which the Court has imposed meaningful restrictions on the executive under both Presidents Biden and Trump.  

The paper defends this new emergency case law. It also proposes a canon of construction for broad emergency statutes, which I call authority-matching. The canon establishes a presumption against reading new powers into broad emergency statutes if specific statutes exist that would ordinarily apply to the executive action under review. Authority-matching aligns with the Learning Resources plurality, offers a better path for constraining pretextual or excessive executive use of emergency statutes than the major questions doctrine, and makes it harder for the President to sidestep statutory restrictions by declaring national emergencies.

I. Emergency Statutes, Unbound

Congress delegated broad emergency authority to the executive through roughly 150 statutory provisions. Many are activated by a presidential emergency declaration. The National Emergencies Act of 1976 was meant to constrain the use of emergency authority in peacetime by giving Congress a legislative veto over emergency declarations and instituting certain procedures. But the Supreme Court’s 1983 decision in INS v. Chadha, which invalidated legislative vetoes, gutted that check. Congress amended affected statutes to comply with Chadha by simply removing legislative veto provisions without reclaiming the broad authorities they delegated to the executive.

Today, terminating an emergency requires a veto-proof majority in Congress. That has proved to be an almost insurmountable bar even when Congress musters the will and energy to try. Congressional efforts to prevent President Trump from repurposing military funding for the construction of a border wall resoundingly failed, as did more recent efforts to terminate one of the emergency declarations underlying some of his tariffs. The result has been “forever emergencies” that unlock extensive executive power. 54 declared national emergencies remain active, up from just thirty in 2013. Many, like the Iran national emergency, have been in place for decades.

Courts have long acquiesced in executive use of emergency statutes and deferred to the President’s judgement about the need for emergency measures. For example, in Dames & Moore v. Regan, the Supreme Court held that the President could rely on IEEPA to nullify attachments of property in court proceedings against Iranian parties as part of the effort to end the embassy hostage crisis. It also upheld the President’s power to suspend claims against Iranian parties pending in U.S. courts, although it found this authority outside IEEPA. In Ex Parte Quirin, the Supreme Court held that the Articles of War, a military statute that governed courts martial, authorized the President to try eight German saboteurs that landed on U.S. territory during World War II before military commissions. In Ludecke v. Watkins, the Court held that the executive lawfully relied on the Alien Enemies Act of 1798 to remove a German national from the United States after the end of active World War II hostilities.  And in United States v. Yoshida International, a precursor of the Federal Circuit upheld certain duties President Nixon imposed under the Trading with the Enemy Act (TWEA)—an IEEPA precursor—to combat rampant inflation.

Yet recent executive practice has upended the judicial status quo. Since the 1970s emergency powers reform, emergency statutes have generally been used to go after foreign targets, or address natural disasters and pandemics. Before 2010, almost all presidential emergency declarations focused on traditional foreign affairs concerns like non-proliferation, terrorism, and rival states.

Under Presidents Trump and Biden, however, emergency statutes have been radically extended and domesticated. Sixteen presidential emergency declarations in the last fifteen years, and thirteen in the last five years alone, addressed purely domestic or mixed concerns like immigration, protecting supply chains, trade deficits, industrial policy, and domestic law enforcement. The targets of emergency action extended from Iranian scientists and Russian troll farms to large and powerful American corporations like TikTok, and eventually all U.S. importers.

The shift in targets and orientation of executive statutory emergency action has altered the legal stakes. Unlike the foreign terrorism suspect or Russian troll, powerful or well-represented domestic plaintiffs like TikTok, V.O.S Selections, and Learning Resources have the means to mount substantial legal challenges to emergency action. Unlike foreigners with little or no ties to the United States, those plaintiffs also have the full slate of constitutional and administrative law arguments available to them.

Judges, on their part, tend to be more concerned about executive action that hits close to home than they are about foreign action. They are likely more averse to presidential assertions of boundless domestic regulatory power too. And statutory emergency powers creep and domestication coincided with the current Supreme Court’s growing skepticism of broad delegations in the domestic context and general effort to clip the wings of the administrative state. The unmooring of emergency action from emergencies in the ordinary sense of the term likely contributed to a judicial impression that executive use of emergency statutes is often pretextual. The result has been new judicial limits on executive use of emergency statutes to advance major policy priorities.

II. New Judicial Limits  

The paper connects strands of case law in which courts invalidated or constrained executive action based on emergency statutes. The cases span tariffs, tech platform regulation, immigration, and the COVID-19 response. Trump v. Illinois, in which the Supreme Court tentatively concluded that the President lacked statutory authority to federalize the National Guard for immigration enforcement in Illinois, is a different but related example. In all those cases, courts scrutinized statutory text closely, expressed skepticism toward novel applications of longstanding statutes, and resisted the executive’s attempt to circumvent procedural requirements or Congressional inaction by appealing to emergencies.

In the tariff litigation, the Federal Circuit and then the Supreme Court in Learning Resources declined to read the words “regulate . . . importation” in IEEPA as a delegation of unlimited, universal tariff authority to the President. The six justices in the splintered majority all agreed that ordinary methods of statutory construction led to the conclusion that IEEPA did not delegate such power. The Court underscored that the power to tax belongs to Congress. It then examined the broader tariff statutory scheme carefully. Every time Congress delegated tariff power, it used the word “tariff” or its synonyms and limited the President’s discretion through procedural constraints. IEEPA did not.

Chief Justice Roberts, joined by Justices Gorsuch and Barrett, would also apply the major questions doctrine to find that IEEPA did not extend to tariffs. The Trump tariffs were doubtless vastly politically and economically significant, and the statute did not explicitly authorize them. The Chief made it clear he believed “there is no exception to the major questions doctrine for emergency statutes.”  Unlike Justice Kavanaugh in dissent, Roberts found the President’s foreign affairs powers did not bar or alter the application of the doctrine in this case.

Another IEEPA extension during the first Trump administration, the TikTok and WeChat cases, told a similar story. Although the cases never reached the Supreme Court, federal courts blocked Trump’s 2020 executive orders pursuant to IEEPA that purported to effectively ban the platforms in the United States. Again, courts that reviewed the orders paid close attention to IEEPA’s text. They concluded that IEEPA’s carve-out for informational materials covered content-hosting platforms like TikTok.

In the ongoing Alien Enemies Act (AEA) litigation, courts across the ideological spectrum—including the Supreme Court—have required the government to provide at least rudimentary process before deporting alleged Tren de Aragua (TdA) members. The Supreme Court has so far declined to resolve the statutory questions related to the applicability of the rarely used wartime Act to the present circumstances, but it has repeatedly intervened to require notice and opportunity to be heard for those facing removal. The intense involvement of the courts in the Alien Enemies Act saga has slowed down deportations and corrected in real time grave due process violations like the summary removal of Kilmar Abrego Garcia to El Salvador. Many would say the courts have not gone far enough. But they have done more than they did in similar past situations.  For comparison, it took a Guantanamo U.S. citizen detainee three years to have the Supreme Court require a semblance of due process from the Government in Hamdi v. Rumsfeld. AEA plaintiffs had the Supreme Court intervene within weeks.

Courts likewise challenged the legality of the construction of a border wall during the first Trump administration. When Congress refused to fund the wall, President Trump declared an emergency and repurposed military construction budgets to build it anyway. The Court of Appeals for the Ninth Circuit found, based on careful reading of the surrounding statutory scheme, that repurposing the funds exceeded the President’s emergency power under Section 8005 of the 2019 Defense Appropriations Act. The Supreme Court never reached the merits because President Biden’s discontinuation of the program rendered the case moot.

All those examples relate to actions by President Trump. But the Supreme Court (controversially) invalidated landmark COVID-era emergency actions by the Biden Administration as well. The Court struck down the CDC’s nationwide eviction moratorium based on a statute that allowed the agency to take emergency action to prevent the transfer of communicable disease. The Court struck down OSHA’s vaccine mandate for large private employers, again based on emergency authority. The Court also invalidated a measure much farther removed from the exigencies of the COVID pandemic. In Biden v. Nebraska, the Court struck down on major questions grounds the Biden administration’s student debt forgiveness program. President Biden relied on emergency authority in the HEROES Act, originally enacted to relieve the burden on servicemembers after the 9/11 attacks.

Each time, the Court emphasized that the statutes at issue had never been used for the purposes for which they were invoked, that Congress had addressed the subject matter through more specific legislation, and that emergencies do not transform narrow grants of authority into boundless presidential power. The COVID cases were also some of the main cases in which the Court foreshadowed and then applied the major questions doctrine in its current version, which requires a clear congressional statement for actions with vast political and economic significance.

III. Authority-Matching and the Collapse of Emergency Powers Oversight

The paper proposes a canon of construction that formalizes judicial practice in many recent statutory emergency powers cases. I call the canon “authority-matching”. It requires that when the executive invokes a broad emergency statute in novel ways, courts should ask whether a narrower, specific statute normally governs that subject matter. If it does, there should be a strong presumption that Congress did not intend for the emergency statute to override or circumvent the specific one.

For instance, tariffs are normally governed by a set of specific statutes with tailored procedures, caps and sunsets. That should weigh against finding tariff authority in broad IEEPA language. The Alien Enemies Act is a wartime statute. Removal of foreign nationals in peacetime is normally governed by the Immigration and Nationality Act. In the border wall and student loan cases, there were specific congressional enactments that implemented much narrower programs than those the executive advanced. In each case, the executive reached for a residual emergency statute to avoid the limits Congress had imposed through specific ones.

Authority-matching has several advantages over the major questions doctrine, which has dominated academic and judicial debate about constraining emergency delegations. The major questions doctrine is an extremely poor fit where it comes to emergency statutes. It asks whether an action is of “vast economic and political significance”. Emergency actions in response to exigent circumstances that risk important national interests are politically and economically significant almost by definition.

The major questions doctrine, in its current form, requires clear congressional authorization once executive action is found to be major. But clear authorization for specific action would often be impossible to find in intentionally broad and vague emergency statutes written to capture circumstances that Congress cannot anticipate precisely. That is the point of emergency authority. I don’t think this Court is ready to invalidate the large number of executive emergency actions that are “major” but not clearly authorized by statute, at least outside the limited contexts in which the President can rely on independent Article II powers.

Authority-matching avoids those problems. It shifts the judicial inquiry from subjective evaluation of what counts as “major” to the quintessentially judicial task of reading statutes against the backdrop of other statutes. It draws on a long tradition of structural statutory interpretation endorsed by justices across the ideological spectrum, from Justice Scalia’s holistic textualism to the contextual major questions doctrine Justice Barrett articulated in Biden v. Nebraska.

Authority-matching respects congressional choices without disabling the executive in real emergencies. Emergency authority remains available when Congress truly did not legislate for a situation. After all, that is what emergencies really are. The canon simply channels executive action toward more constrained statutory pathways when they exist.

Conclusion

The best solution for emergency powers creep and domestication is congressional action that would take back some of the vast delegated emergency authority or counteract the President in the emergency space. Regrettably, this path toward a better statutory emergency powers regime does not seem viable in an era of growing polarization and declining legislative activity. The collapse of congressional oversight of emergency powers makes the judiciary the only available institutional check on aggressive use of emergency statutes for domestic regulation. Learning Resources shows the courts are willing to play that role.

Authority-matching in the emergency space aligns with judicial practice and avoids major pitfalls of the major questions doctrine. As presidents leverage and even manufacture emergencies to trigger a sprawling web of expansive delegated powers, courts can use standard tools of statutory construction to channel executive action to non-emergency routes with greater strings attached.

Elena Chachko is an Assistant Professor of Law at Berkeley Law School. Before joining the faculty in 2023, she was the inaugural Rappaport Fellow at Harvard Law School and a Miller Fellow at Berkeley Law. Professor Chachko studies and teaches administrative law and foreign relations law.