Barring a blocking by Congress, it seems that we will end up with the courts deciding whether President Trump’s national emergency declaration will hold.

Some are saying that presidents have very wide discretion on this, since there are no specific criteria that must be met, but how wide is that discretion?

It can’t be unlimited, or a president could declare a national emergency if libraries were losing users and needed assistance (an education crisis), or too many people were having everyday colds and money needed to be shifted to pay for health services that Congress would not legislate for (health crisis). Or, in the case of Trump, that his properties nationwide were losing value and that hurt the nation’s business climate (economic crisis). So, such executive power cannot be unlimited.

So, what criteria should be used regarding national emergency declarations? Can general criteria be drawn, or must it be decided case by case? In, say, in the border situation, all relevant factors and circumstances must be evaluated – including many of the statements made by Trump himself.

Neil Wollman