Twelve Emergencies: The Second Trump Administration's Use of the National Emergencies Act, 2025–2026

The National Emergencies Act of 1976 was supposed to be a leash. Congress, alarmed by four decades of unexamined emergency powers, required that every future declaration name its statutory basis, be reported to Congress, and lapse automatically unless renewed each year.¹ Fifty years later, the leash has stretched into something closer to a routine: as of late October 2025, 48 national emergencies were active in the United States, and President Trump was responsible for 11 of them.² By the end of August 2026, the number of new declarations from his second term alone had reached twelve, with two more carried over from his first term still on the books.³

This article evaluates each of those twelve declarations: what it authorized, whether it was challenged in court, and where that challenge stands as of August 31, 2026. The record is lopsided in a revealing way. The emergencies used as vehicles for tariffs were struck down by the Supreme Court in the most significant separation-of-powers decision of the decade. The emergencies used as vehicles for sanctions, designations, and regulatory authority have mostly survived, or are still working their way through the courts. And in nearly every case, the declaration itself has outlived the action that made it controversial.

The legal framework

Two statutes do most of the work. The National Emergencies Act (NEA) supplies the procedural skeleton: a president declares a national emergency by proclamation or executive order, specifies the statutory authorities he intends to use, and renews the declaration annually or it expires.¹ The International Emergency Economic Powers Act (IEEPA) supplies the substantive muscle: upon a declared emergency arising from an “unusual and extraordinary threat” with its source outside the United States, the president may “investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit” transactions involving foreign property, including imports and exports.⁴ IEEPA was enacted in 1977 as a peacetime replacement for the Trading with the Enemy Act, and for nearly half a century no president read it to authorize tariffs.

The courts have historically been reluctant to second-guess emergency declarations, treating the existence of an emergency as a political question. The 2019 border-wall emergency (Proclamation 9844) was litigated for two years on the narrower question of whether the president could divert appropriated funds, not on whether the emergency was real.⁵ That deference ended, abruptly, in February 2026, when the Supreme Court held that IEEPA does not authorize tariffs at all. The decision, Learning Resources, Inc. v. Trump, is the pivot on which the entire second-term emergency program turns, and it frames everything that follows.⁶

The twelve declarations

The tariff emergencies: EOs 14193, 14194, 14195, 14257, and 14323

Five of the twelve declarations were, in substance, tariff orders. On February 1, 2025, President Trump declared national emergencies with respect to the flow of illicit drugs across the northern border (EO 14193, Canada), the situation at the southern border (EO 14194, Mexico), and the synthetic opioid supply chain in China (EO 14195), and imposed IEEPA duties of 25 percent on most Canadian and Mexican goods and 10 percent on Chinese goods.⁷⁸⁹ On April 2, 2025, he declared a separate emergency over “large and persistent annual United States goods trade deficits” and imposed reciprocal tariffs of at least 10 percent on nearly all trading partners (EO 14257).¹⁰ On July 30, 2025, he added a 40 percent duty on certain Brazilian products (EO 14323), citing Brazil’s treatment of former President Jair Bolsonaro and its regulation of American platforms.¹¹

The legal challenge arrived within weeks. In April 2025, five small importers represented by the Liberty Justice Center and law professor Ilya Somin filed V.O.S. Selections, Inc. v. United States in the Court of International Trade (CIT), joined by a twelve-state suit led by Oregon; a parallel suit, Learning Resources, Inc. v. Trump, was filed in the District of Columbia by two educational-toy makers.¹² The CIT granted summary judgment to the importers on May 28, 2025, holding that IEEPA does not delegate tariff authority and that a contrary reading would violate the nondelegation doctrine.¹³ The Federal Circuit, sitting en banc, affirmed on August 29, 2025, by a 7-4 vote.¹⁴ The Supreme Court granted certiorari on September 9, 2025, heard argument on November 5, 2025, and decided the consolidated cases on February 20, 2026.⁶

The decision was a 6-3 defeat for the administration. Chief Justice Roberts, writing for the Court, held that IEEPA’s authority to “regulate… importation” does not include the power to tax: tariffs are “very clearly a branch of the taxing power,” and the Constitution gives Congress alone the peacetime tariff power. A plurality of three (Roberts, Gorsuch, and Barrett) added that “until now no President has read IEEPA to confer such power,” and rested in addition on the major questions doctrine; Justice Kagan, joined by Sotomayor and Jackson, concurred on ordinary statutory interpretation grounds. Justice Kavanaugh dissented, joined by Thomas and Alito, warning that the United States “may be required to refund billions of dollars to importers who paid the IEEPA tariffs.”⁶¹⁵

The aftermath was as consequential as the holding. On the day of the decision, the president issued EO 14389, “Ending Certain Tariff Actions,” terminating the IEEPA duties under all nine tariff-related orders, including the Brazil and Cuba orders, effective February 24, 2026.¹⁶ Critically, the order stated in terms that “the national emergencies declared or described in” those orders “remain in effect and shall not be affected by this order.”¹⁶ The declarations survived their own invalidation.

The administration then improvised. A February 20, 2026 proclamation invoked Section 122 of the Trade Act of 1974, a never-before-used provision, to impose a 10 percent global surcharge for the statutory maximum of 150 days.¹⁷ A divided CIT panel struck that down on May 7, 2026, holding that trade deficits are not the “balance-of-payments deficits” the statute addresses; the Federal Circuit temporarily stayed the ruling in May and then stayed it pending appeal on June 11, 2026, and the surcharge expired on schedule on July 24, 2026.¹⁸¹⁹ On July 23, 2026, the U.S. Trade Representative imposed Section 301 tariffs of 10 to 12.5 percent on sixty economies over forced labor, a measure challenged in the CIT the next day by the Liberty Justice Center, including a returning Section 122 plaintiff.²⁰²¹ Refunds of the roughly $166 billion collected under the IEEPA tariffs are being processed through a new automated system; as of a July 10, 2026 government filing, about $86.3 billion plus interest had been returned, with some 3,700 refund suits pending at the CIT.²² The administration’s separate suspension of the $800 de minimis exemption survived, with a CIT panel upholding it on August 13, 2026, on the ground that it is not an exercise of the power of the purse.²³

Status. The tariff emergencies were the only declarations in this set to be definitively rejected on the merits, and even they remain formally in effect. The Brazil emergency (EO 14323) drew only one U.S. challenge, Johanna Foods, Inc. v. Executive Office of the President, which was stayed and effectively mooted when the duty was terminated; Brazil has since filed a WTO dispute (DS646) over the successor Section 301 tariffs.²⁴²⁵

The border and cartel emergencies: Proclamation 10886 and EO 14157

On January 20, 2025, the president reinstated the southern border emergency (Proclamation 10886), directing the military to assist in achieving “full operational control” of the border and ordering construction of additional barriers.²⁶ The same day, EO 14157 directed the Secretary of State to designate eight Latin American cartels and criminal organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists.²⁷

No plaintiff has directly challenged the validity of Proclamation 10886 itself. The litigation has instead attacked its implementation. Environmental groups challenged the Department of Homeland Security’s June 2025 waiver of environmental laws for the Arizona border wall project (Center for Biological Diversity v. Noem, pending in the District of Arizona).²⁸ California sued over the federalization of its National Guard and the deployment of Marines to Los Angeles; after a trial on the merits, a district court found the deployment violated the Posse Comitatus Act and enjoined it on September 2, 2025 (Newsom v. Trump).²⁹ The District of Columbia obtained a preliminary injunction in November 2025 over the deployment of National Guard troops to the capital, partially denying the government’s motion to dismiss.³⁰ None of these cases tests the declaration itself, and the emergency was renewed on January 12, 2026.³¹

The cartel designation has produced a different pattern. No case directly challenges the FTO designation under 8 U.S.C. § 1189; the litigation instead surrounds the uses the administration made of the designation. The March 2025 invocation of the Alien Enemies Act to remove alleged Tren de Aragua members produced the most dramatic litigation of the term: Judge James Boasberg’s orders blocking removals, the Supreme Court’s intervention in Trump v. J.G.G., the mass transfer of detainees to El Salvador’s CECOT prison, and a contempt investigation of the administration that the D.C. Circuit halted in April 2026, with rehearing en banc scheduled for September 29, 2026.³²³³ A Fifth Circuit panel held the Alien Enemies Act invocation unlawful in September 2025, but the case was dismissed as moot on August 13, 2026, after the named plaintiffs were deported under other authority, leaving the panel’s holding vacated.³⁴ The administration’s termination of Temporary Protected Status for Venezuela was set aside by the Ninth Circuit on January 28, 2026, which held the Secretary had exceeded her statutory authority.³⁵ And in Noem v. Abrego Garcia, the Supreme Court upheld the component of a district court’s order requiring the government to facilitate the release of a Salvadoran man erroneously deported to CECOT, while questioning whether an order to effectuate his return would exceed the district court’s authority.³⁶

Status. The border emergency is in effect and largely unchallenged at its core; the cartel emergency is in effect, with its most aggressive uses checked in court but the designation itself untouched.

The energy emergency: EO 14156

The January 20, 2025 energy emergency directed agencies to expedite permitting for fossil fuel, hydropower, nuclear, and critical-minerals projects, including through emergency procedures, and to consider federal eminent domain and Defense Production Act authorities.³⁷ It has been the most litigated domestic emergency of the term, but no court has yet reached the merits.

The principal case, Washington v. Trump, was filed in May 2025 by fifteen states and amended in January 2026 to seventeen, alleging that the order is ultra vires under the NEA and that the agencies’ emergency permitting violates the Clean Water Act, the National Historic Preservation Act, the Endangered Species Act, and the APA.³⁸ A motion to dismiss is fully briefed and pending. A youth climate challenge to the order was dismissed for lack of standing and affirmed by the Ninth Circuit on June 2, 2026.³⁹ A separate cluster of litigation challenges the Department of Energy’s emergency orders under Federal Power Act § 202(c) keeping coal plants from retiring; the D.C. Circuit heard argument in the first of these cases on May 15, 2026, and decisions remain pending.⁴⁰

Congress has tried and failed to terminate this emergency twice: S.J.Res. 10 failed 47-52 on February 26, 2025, and S.J.Res. 71 failed 47-51 on October 8, 2025.⁴¹⁴² The emergency was renewed on January 12, 2026.⁴³

Status. In effect; the central challenge is pending, and the congressional check has proven ineffective.

The ICC sanctions: EO 14203

On February 6, 2025, the president declared a national emergency and imposed sanctions on International Criminal Court personnel involved in investigating or prosecuting American or allied nationals, designating ICC Prosecutor Karim Khan.⁴⁴ This emergency has produced the most sustained First Amendment litigation of the set, and the administration has lost at the preliminary stages repeatedly.

In Rona v. Trump, two law professors obtained a permanent injunction on July 30, 2025, on the ground that the order’s restrictions on speech-based services are content-based and fail strict scrutiny; the case closed without an appeal in the docket.⁴⁵ In Smith v. Trump, the ACLU obtained a preliminary injunction on July 18, 2025; the case remains ongoing.⁴⁶ In Cali v. Trump, the family of UN Special Rapporteur Francesca Albanese obtained an injunction on May 13, 2026, which the D.C. Circuit administratively stayed on May 22, 2026, after which Treasury reinstated Albanese to the sanctions list; a D.C. Circuit panel then stayed the injunction pending appeal in mid-June 2026, with Judge Katsas, joined by Judge Henderson, writing separately that the First Amendment likely does not reach a nonresident foreign national’s speech abroad. The appeal is pending.⁴⁷ Three ICC judges sued in June 2026 (Prost v. Trump), and two Palestine-advocacy organizations sued in July (DAWN & TAAG v. Trump), followed in August by four human rights groups (AFSC et al. v. Trump), all raising First Amendment, IEEPA ultra vires, and related claims.⁴⁸⁴⁹⁵⁰

Status. In effect, but under sustained attack; three injunctions have issued (two standing, one stayed pending appeal), and the emergency’s core speech restrictions have been found likely unconstitutional in three separate courts.

The 2026 sanctions emergencies: EOs 14373 and 14380

Two 2026 declarations show the administration pivoting from tariffs to asset protection and secondary sanctions. EO 14373 (January 9, 2026) declared a national emergency to shield “Foreign Government Deposit Funds,” the Venezuelan oil revenues held in U.S. Treasury accounts, from attachment by judgment creditors, declaring any such judicial process null and void.⁵¹ The order was signed days after U.S. forces captured Nicolás Maduro, and it directly intersects the decade-long Crystallex execution saga over the CITGO shares. No plaintiff has sued to invalidate the order itself; the litigation runs through the pending Third Circuit appeals of the November 2025 sale order for the CITGO parent’s shares, with oral argument scheduled for October 21, 2026, and through post-order motions that the Delaware district court denied on February 10, 2026.⁵²⁵³

EO 14380 (January 29, 2026) declared a national emergency with respect to Cuba and authorized, but did not impose, additional duties on goods from any country that supplies oil to Cuba.⁵⁴ No duties were ever imposed, no implementing findings were published, and the authority was terminated by EO 14389 on February 20, 2026, in direct response to Learning Resources.¹⁶ The Cuba emergency declaration itself remains in effect, and subsequent Cuba policy has shifted to sanctions (EO 14404, May 1, 2026).⁵⁵

Status. EO 14373 is in force and untested at its core; EO 14380’s tariff mechanism is a dead letter, with the declaration surviving.

The bulk-power emergency: EO 14421

The most recent declaration, EO 14421 (August 26, 2026), revives and expands the 2020 bulk-power order, prohibiting acquisition or installation of foreign-produced bulk-power system electric equipment that poses cybersecurity or supply-chain risks, with the Department of Energy directed to implement rules within 120 days.⁵⁶ As of August 31, 2026, no legal challenge has been filed, and none is likely until the Department of Energy issues its designations and rules, due by December 24, 2026. Because the order operates as a transaction prohibition rather than a tariff, Learning Resources does not directly govern it, though the same IEEPA authority questions may resurface in APA challenges to the implementing rules.⁵⁷

Status. In effect; litigation anticipated once implementation begins.

Assessment

Four conclusions emerge from the record.

First, the tariff experiment is over. The Supreme Court’s holding that IEEPA does not authorize tariffs was the first time in the modern era that the Court has meaningfully constrained the emergency powers, and the administration’s response, a rapid migration to Section 122 and then Section 301, has produced a second and third round of litigation. The pattern is not a defense of the tariff program; it is a demonstration that the emergency power, once invalidated, does not quietly disappear.

Second, the declarations are remarkably durable. Every tariff emergency whose duties were struck down or terminated remains formally in effect, because EO 14389 preserved them and Congress has not acted. The NEA’s annual renewal mechanism, designed as a check, has functioned as a rubber stamp. The only emergency in this set that Congress has voted to terminate, the energy emergency, survived both votes by comfortable margins.⁴¹⁴²

Third, the courts have been far more willing to police the uses of emergency power than the declarations themselves. The tariff duties fell; the Alien Enemies Act invocation was checked; the ICC sanctions were enjoined at the preliminary stage; the TPS termination was set aside. But no court has held that an emergency declaration was invalid because the underlying threat was not an emergency, and the border, cartel, energy, and bulk-power declarations have never been directly tested on that question. The 2019 precedent, in which the courts reviewed the border emergency only through the lens of the Appropriations Clause, appears to be the template.⁵

Fourth, the legal status of each declaration tracks its function. Tariff emergencies: struck down, with the declarations surviving. Sanctions and designation emergencies: in effect, with individual actions enjoined or pending. Regulatory emergencies: in effect, with merits litigation pending. As of August 31, 2026, twelve declarations stand, and the question of what a national emergency may lawfully do remains, in most of them, unresolved.

Notes

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