The Supreme Court has been trying to avoid directly confronting Donald Trump’s blatant challenges to established legal norms. But two cases destined to reach the justices are going to make that very difficult. Both instances involve signature Trump policies that were ruled unlawful by federal appeals courts: his unilateral tariffs, found to exceed his presidential authority, and his use of the Alien Enemies Act to deport alleged Venezuelan gang members.
In each case, the Supreme Court will have to choose between angering Trump by striking down his actions or issuing decisions that effectively endorse his distortions of legal reality.
During both his terms, Trump has behaved as if he had the unchecked power to impose tariffs on any country at any time. His behavior has come to seem somehow normal. It isn’t. No president in U.S. history has ever tried to impose tariffs in such a sweeping, unilateral way. And there is a reason for that: tariffs are taxes. The Constitution places the power to tax squarely in the hands of Congress, not the president.
Trump’s only legal justification for the authority to impose such tariffs is the International Emergency Economic Powers Act (IEEPA). But on its face, the IEEPA never explicitly says the president can do this. What it does say is that, when the president declares a national emergency based on an “unusual and extraordinary threat … to the national security, foreign policy, or economy of the United States,” the president may, among other things, “regulate” the “importation” of property.
The Trump administration’s legal argument is that regulating importation must include subjecting imports to tariffs. The U.S. Court of Appeals for the Federal Circuit held otherwise.