The art of the emergency

A huge loophole presidents can exploit

When Iranian students chanting anti-American slogans gathered in front of the U.S. Embassy in Tehran at about 10:30 on the morning of November 4, 1979, it seemed that they would be following other groups heading to a planned demonstration at the nearby university.

Instead the crowd surged toward the embassy’s front gates. Young women pulled bolt cutters out of their hijabs.

Local security officers “melted away,” newly arrived U.S. diplomat John Limbert would later recall. “The gates were nothing like today’s security arrangements, the barriers were nothing like you see today in embassies, with all the high-tech stuff and the razor wire and the bollards and all that sort of thing. It was essentially an ornamental fence.”

The protesters broke a window in the main building, removing metal bars, while outnumbered U.S. marines fired tear gas in a vain effort to stop them. Limbert and other embassy workers rushed to the second floor and sheltered behind a steel door, with some destroying sensitive documents. Then Limbert did what he later described as “one of the most stupid things I’ve ever done in my Foreign Service career. I volunteered to go out and talk to these guys.”

In fluent Persian, he urged the students to leave. Instead they took him prisoner. “And then they announced if we didn’t open the door in five minutes they were going to shoot me and the security officer, whom they also had.” The other embassy staffers opened the steel door. Thus began a 444-day ordeal for most of the 66 U.S. diplomats who were taken hostage.

U.S. President Jimmy Carter had allowed Reza Shah Pahlavi, the deposed leader of Iran, to enter the U.S. for cancer treatment, enraging Iran’s revolutionaries. The president would not agree to return the Shah to his country to face trial under the fundamentalist Islamic regime headed by Ayatollah Ruhollah Khomeini.

Ten days after the seizure of the embassy, Carter declared a national emergency. It was the first of more than 70 emergencies proclaimed by presidents under the International Emergency Economic Powers Act (IEEPA). And like many of those emergencies, it is still ongoing decades later, despite the freeing of the hostages in 1981. “Seven successive Presidents have renewed that emergency annually for more than 40 years,” the Congressional Research Service reported. The emergency remains active “largely to provide a legal basis for resolving matters of ownership of the Shah's disputed assets.”

President Donald Trump has invoked the same law as the legal authority for his sweeping tariffs. Since taking office, he’s broken the record among recent presidents for the number of emergencies he’s declared. The man who became famous with the book, The Art of the Deal, can now write a sequel: The Art of the Emergency.

A “national emergency” arising from foreign trade practices was declared by Trump on April 2. It imposed a 10% tariff on all countries, even ones with which the U.S. had a trade surplus. Those tariffs, along with ones levied by Trump purportedly to fight the trafficking of migrants and of drugs including fentanyl, were struck down by a three-judge panel of the U.S. Court of International Trade on May 28.

Their decision noted that the Constitution gives Congress the power to regulate trade and while it has delegated some of that power to the executive branch, IEEPA doesn’t give presidents the power to impose wide-ranging tariffs. In fact, the law was enacted as part of an (unsuccessful) effort to rein in the ability of the White House to enhance its powers by declaring emergencies.

What’s an emergency?

In ordinary language, an emergency is “a serious, unexpected, and often dangerous situation requiring immediate action,” according to dictionary publisher Oxford Languages. The seizure of the U.S. embassy in Tehran seems like a classic case of a real emergency; so too the terrorist attack on the U.S. on September 11, 2001 and the Covid-19 pandemic.

In actual practice, though, an emergency could be whatever situation a president considers worthy of justifying extraordinary action. The courts and Congress have given presidents extremely wide latitude to decide when to declare an emergency.

In a way, that makes sense when you consider the endless list of potential threats to national security and the economic health of the United States. But it also raises the specter of presidents inventing emergencies to enhance their power and override opponents.

Take the April 2 executive order issued by Trump. He declared a national emergency on the grounds that “underlying conditions, including a lack of reciprocity in our bilateral trade relationships, disparate tariff rates and non-tariff barriers, and U.S. trading partners’ economic policies that suppress domestic wages and consumption, as indicated by large and persistent annual U.S. goods trade deficits, constitute an unusual and extraordinary threat to the national security and economy of the United States.”

Trump’s executive order pointed out that the U.S. trade deficit in goods had “grown by over 40 percent in the past 5 years.” (The U.S. runs a surplus in the trade of services with other countries.) He also said the U.S. had lost about 5 million manufacturing jobs from 1997 to 2024. And the nation has had substantial trade deficits since the 1980s.

Our new banana republic

This was not a sudden, unexpected event. If it was an emergency, it was clearly a slow-moving one, decades in the making. But proclaiming it was just what Trump thought he needed to validate the tidal wave of tariffs he unleashed.

As Elizabeth Gotein of the Brennan Center wrote in December, 2023, the National Emergencies Act (NEA), passed in 1976, “gives the President near-total discretion to declare a national emergency; there are no substantive criteria that must be met. The declaration then unlocks enhanced powers contained in more than 130 statutory provisions scattered across the U.S. Code.”

“Many of these powers appear reasonable and measured—for instance, the authority to waive weight limits on highways to facilitate the transport of jet fuel in a national emergency. Other provisions, however, are breathtaking in their potential for abuse. There are laws that allow the President to take over or shut down communications facilities, seize Americans’ assets without judicial process, and exert seemingly unlimited control over domestic transportation. Astonishingly, there is even a law that allows the President to suspend the prohibition on government testing of chemical and biological agents on unwitting human subjects.”

The National Emergencies Act originally allowed Congress to nix presidentially declared emergencies through concurrent resolutions, passed by majority vote in each chamber and not subject to a presidential veto. But in 1983, the Supreme Court ruled that concurrent resolutions were unconstitutional.

Congress can still vote to terminate an emergency declared by a president, but the president can veto that measure, and it would take two-thirds of both houses to override the veto.

As Gotein noted, Trump declared a national emergency in his first term to redirect funding to expedite his Mexico wall. Joe Biden cited the Covid-19 national emergency to forgive as much as $20,000 in student loan debt for those with incomes less than $125,000. “It is hard to escape the conclusion that Biden leveraged emergency powers to bypass Congress on a key policy goal,” wrote Gotein.

Greater potential abuses of emergencies became apparent after Trump lost the 2020 election. Gotein wrote, “His allies urged him to deploy a wide range of emergency powers—under the NEA and other laws—to hold on to the White House. Some suggested that he use the Insurrection Act, a law that allows the President to deploy the military during domestic emergencies, to suppress any resistance to his remaining in office. At least one of Trump’s associates proposed that he invoke IEEPA to seize voting machines, based on false claims that Dominion Voting Systems, a foreign-owned corporation that sold voting equipment and software used in the 2020 election, had tampered with votes.”

Gotein has argued for a reform measure requiring that any national emergency would expire after 30 days unless Congress votes to approve it. The idea makes eminent sense but it’s going nowhere in a Republican-controlled Congress. And for that matter, even a future Democratic-controlled Congress might hesitate at imposing that kind of limit on a president if their party controls the White House. But the U.S. Constitution’s “checks and balances” risk being neutered if presidents can constantly spin out emergencies.

“In his first 100 days,” Zachary Bass of Axis reported in April, “President Trump has declared more national emergencies — more creatively and more aggressively — than any president in modern American history…Powers originally crafted to give the president flexibility in rare moments of crisis now form the backbone of Trump's agenda, enabling him to steamroll Congress and govern by unilateral decree through his first three months in office.”

Graphic by Axios.

Reining in presidents

The NEA and IEEPA were efforts to put guardrails around presidents’ use of emergency powers. In part they were a post-Watergate scandal reaction to the administration of President Richard Nixon. Yet these laws haven’t worked out as planned.

“Congress intended IEEPA to be used sparingly,” noted Peter E. Harrell of the Lawfare Institute. “The House report accompanying the law stated that ‘emergencies are by their nature rare and brief, and are not to be equated with normal, ongoing problems.’ But, in practice, presidents soon began to use the statute expansively, relying on IEEPA to sustain sanctions and other international economic relations for years while lowering the threshold for declaring an ‘emergency.’”

“Contemporary sanctions programs address not only acute emergencies like wars and terrorist attacks but also persistent global problems such as corruption and human rights abuses. Moreover, presidents have used IEEPA to impose a dizzying array of restrictions. These include bans on imports and exports, such as the IEEPA-derived trade sanctions President Biden imposed on Russia after it invaded Ukraine in February 2022. Across multiple U.S. sanctions regimes, IEEPA serves as the legal basis for asset freezes against 17,000 individuals, companies, and government entities. More recent uses of IEEPA include establishing a regime to control U.S. investment in China; to prohibit the use of Chinese internet-connected cars in the United States; and to restrict certain bulk data transfers to China, Russia, and other designated adversaries.”

In captivity

Some of the U.S. hostages, including John Limbert, center left.

As a captive in Iran, John Limbert tried to keep in touch with his family and friends by letter. He estimated that his captors would give him only about one out of every twenty letters from them “and of the letters that I wrote, maybe one out of ten would get through.”

Sometimes the letter he would get would be from “some fourth grader in Illinois who was writing a letter as part of some class project. Now, that’s all very nice but given a choice you’d much rather have the letter from your family but that displaces the letter from your family, it’s not necessarily a good thing.Somebody wrote me, though, I forget, it was some kid wrote a letter, ‘I know how you must feel as a prisoner. After all, I’m in the second grade.’”

In his oral history of the experience, Limbert describes the careful choices the hostages had to make about what to say to their captors. There were some especially scary moments. “At one point people came in at two in the morning and dragged us out, lined us up against a wall and pretended they were going to shoot us.” They “started chambering rounds and said, ‘Okay, go back.’ Never figured it out. I’ve often asked myself what it was.”

A 2010 photo of Ambassador John W. Limbert, U.S. Deputy Assistant Secretary for Iran. (U.S. Mission Geneva)

“One of the things I guess every prisoner has learned since Biblical times is that there is no reason or rationality to what happens to you. You are in the hands of an irrational system and the sooner you adapt to that the better. So you don’t ask questions like, ‘Why are they doing this or what’s the reasoning behind it?’ They’re doing it because they can do it, I suppose….”

Sixty-six hostages were taken at the outset of the crisis, but of those, 14 had been freed earlier, leaving the 52 who were held captive the entire time. Another six U.S. diplomats had fled to the Canadian embassy and were smuggled out of Iran, as depicted (with poetic license) in the film Argo.

The 1979 emergency declared by President Carter had frozen Iran’s assets in the U.S. and imposed trade sanctions. The day before Carter left office in 1981, a deal was reached between Iran and the U.S., with Algeria acting as a go-between in the bargaining process. Iran agreed to release the hostages and the U.S. unfroze billions in assets. The two nations are still trying to settle their diplomatic conflicts in 2025.

In a true split-screen moment, as Americans watched Ronald Reagan being inaugurated as president, the Khomeini government turned the remaining 52 hostages over to Algeria. Limbert, who later became an ambassador, and the others boarded a plane that flew them to Algiers. Then they traveled on U.S. Air Force C-9 planes to an American military hospital in Germany.

“And we land in Frankfurt, it’s about six o’clock in the morning, this is, what?, January 21^st, now,” Limbert recalled. “It’s cold, it’s dark, there’s snow coming down and we taxi up to some part of the terminal and I look out the window and there’s this big crowd of people, all waving flags and yelling and I said, ‘That’s interesting. I wonder who’s coming? This must be some important figure coming.’ I did not connect it with us, at all.”

The freed U.S. hostages arrive at the American base in Wiesbaden, Germany.

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