“It depends on what is meant by the Constitution.”
A presidential signature alone is sufficient to suspend constitutional rights, detain civilians without trial, seize private property, and direct the censorship of communications, according to a body of presidential emergency action documents that have remained classified since their creation under the Eisenhower administration. Legal experts are divided on whether this authority is real.
“The president’s authority to act in an emergency is well-established,” a senior Justice Department official, who spoke on the condition of not being named, told reporters Monday. “Presidents have prepared these documents for seventy years. None has ever been invoked. The fact that they exist is not, in itself, alarming.”
Constitutional scholars described the same framework in different terms. “The premise of presidential emergency action documents is that the president can suspend the Constitution by signing a piece of paper,” said Elizabeth Goitein, senior director of the Liberty and National Security Program at the Brennan Center for Justice, in an exchange the center has described in a long-running public-facing analysis. “Whether courts and Congress would recognize that authority is a separate question. They have never had occasion to.”
The administration position and the Brennan Center position are both routinely presented as one of two perspectives on the same question. Both sides agree the documents themselves are classified.
NSPM-7: The Operational Layer
The most immediately consequential of the administration’s recent legal instruments is not a presidential emergency action document. It is a national security presidential memorandum, NSPM-7, issued on September 25, 2025, and operational since.
The memorandum directs the attorney general, the Treasury, the Internal Revenue Service, and other federal agencies to identify, investigate, and prosecute “entities and individuals engaged in acts of political violence and intimidation.” It cites no statute. The “domestic terrorist organization” designation it claims to authorize does not exist in federal law. It instructs the Department of Justice to prosecute such entities “to the maximum extent permissible by law.”
Joel McCleary, a former Carter White House official and a founder of Keep Our Republic, has described NSPM-7 as the most operationally consequential of the administration’s emergency-related instruments. “It is running now, not waiting for a crisis,” McCleary wrote in a recent report cited by Thomas B. Edsall in a New York Times column published Tuesday. “It operates in plain sight but outside any legal framework.”
An administration lawyer responded that the memorandum was an exercise of long-recognized executive authority to direct federal law enforcement. Asked which long-recognized authority, the lawyer said the question presumed a misreading of the unitary executive theory. The definitional question of what constitutes domestic terrorism has been the subject of separate legal debate.
What Presidential Emergency Action Documents Authorize
Presidential emergency action documents, known by the acronym PEADs, are pre-drafted directives intended for activation in the event of catastrophic emergency. They were created in 1958 under President Eisenhower, in the context of continuity-of-government planning for nuclear war. Subsequent administrations have revised and expanded them. None has ever been invoked.
The documents are classified at a level that excludes most of Congress and, until recently, several members of the administration’s own national security council. Their content is known only through declassified materials from earlier administrations, FOIA-released analyses by the Brennan Center, and references in older FBI memoranda.
According to those materials, these documents have at various points authorized the suspension of habeas corpus, the detention of “alien enemies and other dangerous persons” within the United States, the imposition of martial law in defined areas, the seizure of property and commodities, and the censorship of news reports. There were 56 such documents in effect as of 2017, an increase from 48 a decade earlier.
“PEADs undergo periodic revision,” Ms. Goitein has told congressional committees. “We do not know what they contain today. We know what they have contained in the past. The mechanism is the same. A signature is sufficient.”
The administration has declined to confirm how many such documents are currently in effect, citing classification. A White House official said the question of whether any are under active consideration would also be classified, were it to arise, which the official declined to confirm.
The Distinction From A National Emergency
Asked to explain the difference between a declared national emergency and a presidential emergency action document, Ms. Goitein has noted that a declared national emergency activates statutory authorities contained in 137 separate provisions of law. The PEADs, by contrast, do not require a declaration. Some implement statutory powers. Others claim authority directly from the Constitution.
The distinction matters for the question of constraint. A national emergency declaration can be terminated by Congress through joint resolution. The threshold is high. A two-thirds majority in both chambers is required to override an expected veto. No emergency declaration has ever been terminated this way.
The PEADs have no comparable statutory termination mechanism. A separate constitutional question concerns whether such documents would be subject to judicial review at all, and if so, whether courts would defer to executive determinations about the existence of an emergency.
An administration lawyer said this question had been the subject of internal review. The lawyer declined to summarize the conclusion, citing classification.
The Iran Question
The United States is engaged in active military operations against Iran. In an essay published in The Washington Spectator, former State Department official Jonathan Winer noted that an attack on U.S. soil attributed to Iranian state action, or a cyber operation affecting election infrastructure, could provide a triggering predicate for the invocation of emergency authority that does not currently exist.
“The sequence does not depend on the accuracy of his claims,” Mr. Winer wrote. “It depends on his authority to act and his willingness to use it.”
An administration spokesperson said the suggestion that Iranian activity could be cited as a pretext was “deeply offensive.” The spokesperson added that any future Iranian activity would, if relevant, be cited as a basis for whatever action the situation required.
The Court’s Doctrine
A separate stream of legal scholarship has focused on the Supreme Court’s expanded reading of the president’s “exclusive” constitutional powers, set out in a series of recent decisions. In an April 2025 paper, Shalev Gad Roisman, a law professor at the University of Arizona, argued that the second Trump administration “has been to take the Supreme Court at its word” on those decisions.
“The regime of full executive control that the Trump administration is striving to create might be beyond what the Court foresaw,” Professor Roisman wrote. “But it is not necessarily beyond what it said.”
An administration legal adviser said the Roisman paper was “an academic exercise” that did not bear on the administration’s exercise of its lawful authority. The adviser declined to specify which authority. A previous war-game exercise modeled the cascade of judicial responses to constitutionally questionable executive action.
What Is And Is Not Disputed
Constitutional law professors at major institutions, civil-liberties organizations, and former senior officials of both parties have described the combination of NSPM-7, the PEADs, and the recent expansion of the unitary executive theory as historically without precedent in the United States outside of wartime.
Administration lawyers have described the same combination as routine executive practice. The administration legal adviser who briefed reporters Monday previously served as a deputy general counsel at one of the president’s commercial entities. Asked about this background, the adviser said it was “not relevant” to the current role and declined to elaborate.
The documents themselves remain classified.
Developing.
This is the second article in a four-part series. Part one examined the president’s repeated public statements about the November midterms. Subsequent installments will address federal detention infrastructure and state-level preparation.
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