Episode 5 of the University of Miami School of Law's Constitutional Crisis Seminar features Harold Hongju Koh, Sterling Professor of International Law at Yale Law School. Professor Koh graduated summa cum laude from Harvard, with a major in Government. He studied at Oxford on a Marshall Scholarship, then went back to Harvard for his J.D. Next, he clerked on the D.C. Circuit for Judge Malcolm Richard Wilkey and for Supreme Court justice Harry A. Blackmun, then worked Covington & Burling and for the Department of Justice. Professor Koh has spent much of his career teaching at Yale Law, starting in 1985. Eventually his colleagues made him the Dean of Yale Law School. Among his notable achievements there was leading a group of students in the Human Rights Clinic in litigation against the US government’s detainment of Hattian refugees in Guantanamo. His team won the case 8-1 in the Supreme Court, Haitian Centers Council v. Sale, and the detainees were released in 1993. Professor Koh’s talk concerns administration assertions of emergency power, with particular reference to invocations of the Alien Enemies Act. Professor Koh has chosen to teach Socratically, so (with our students’ permission) we are making the entire two-hour session available publicly. Professor Koh framed his introduction around the thesis of his most recent book, The National Security Constitution (Yale Press 2024). Although that book ended with the Iran-Contra affair, the issues raised then are very similar to what we see now: The fundamental problem is the erroneous belief that the President has all the authority, or illimitable authority, over foreign affairs. Administrations tend to assert, based on United States v. Curtiss-Wright Export Corp, 399 U.S. 304 (1936), that the president is the sole master of the foreign affairs power. But the correct approach is the tri-partite framework Justice Jackson put forward only 16 years later in his concurrence to Youngstown Sheet and Tube Co v Sawyer, 343 U.S. 579 (1952). (That case too involved foreign affairs, as President Truman sought to seize steel mills to support the war effort in Korea.) Justice Jackson distinguished between matters where the President acts with Congress, and his authority is at a maximum; if Congress is silent then the President has only whatever inherent powers are relevant; but if Congress has spoken contrary to the President’s actions, then “his power is at its lowest ebb”.) By the 1980s, the “perversion” of foreign policy showed that there was a major problem with executive overreach. This despite Congressional attempts after the Vietnam War to reign in the President via statutes such as the War Powers Act and the International Emergency Powers Act (IEEPA). IEEPA and some other statutes create special Presidential powers in emergencies. But for Trump suddenly everything is an emergency. Congress has not reacted. Yes, it takes a majority to act, but what’s interesting is that they are not even trying; instead, they hide from angry voters at home and cancel town meetings. Gone are the days when leaders in Congress told Presidents things they did not want to hear. The Courts too are not checking the President, but rather rubber-stamping the executive. After some more detailed analysis of why current claims of emergency are unfounded, Professor Koh ended on a somewhat optimistic note. Yes, we do have a constitutional crisis, as we are going to be deciding whether President Trump can nullify the rule of law for his own benefit. But it’s not over for the Supreme Court – this is the decisive year, and there some reasons to hope that there might be six votes to re-right the balance. The critical vote, Professor Koh suggested, is Chief Justice John Roberts. What the Court does this year likely will determine his place in history, and it’s unlikely he wants to join Chief Justice Rober B. Taney, whose legacy is defined by the Dred Scott decision.