Supreme Court Shows A Willingness To Deny Trump’s ‘Emergencies’ — At Least For Now

WASHINGTON – Does the Supreme Court’s rejection of President Donald Trump’s claim that no one can challenge tariffs he imposed under an “emergency” mean that those same justices who placed the presidency above the law two years ago are now prepared to block his other, even more autocratic impulses?

Critics of Trump’s efforts to expand his powers are cautiously optimistic following Friday’s 6-3 decision in which Chief Justice John Roberts and Trump appointees Neil Gorsuch and Amy Coney Barrett joined with the court’s three justices appointed by Democratic presidents to rule against Trump, noting it shows a willingness to limit Trump’s claims of “emergency” authorities.

“The Supreme Court’s decision provides a roadmap for how the new left-right court majority intends to check Trump’s unlawful abuses of power,” said Norm Eisen, a lawyer in Barack Obama’s White House. “The opinion resoundingly rejects Trump’s contention that courts cannot review a president’s declaration of an emergency.”

Robert Kagan, a neoconservative scholar who served in Ronald Reagan’s State Department and stands among the most strident voices warning of a Trump dictatorship, was less sanguine.

“The fact that they were willing to do this is better than if they had gone the other way. Does it mean they are ready to step in on something like an election dispute?” he wondered. “If the administration claims foreign involvement and national security? If there are disputes about ballots? I can still see them delaying or punting on those questions.”

From the day he took office, Trump set off on a spree of declaring “emergencies” that he claimed allowed him to set aside laws or rules to push policies he wanted. An “energy” emergency, for instance, enabled him to open Alaska for fossil fuel drilling notwithstanding environmental laws and regulations. A “border” emergency has been the pretext for curtailing the refugee program, among many other actions.

Friday’s ruling was the first Supreme Court decision to block actions Trump has taken citing his “emergencies,” in this case tariffs he imposed because of fentanyl trafficking and a trade imbalance with the rest of the world.

“There is no exception to the major questions doctrine for emergency statutes,” the summary of the opinion states, citing a framework the court has in recent years used to invalidate programs it believed went too far beyond what laws had authorised. “Nor does the fact that tariffs implicate foreign affairs render the doctrine inapplicable.”

While a defiant Trump announced in a news conference three hours after the court’s decision that he would simply replace the struck-down tariffs with different ones, the probability of that happening and import taxes continuing was never really a primary concern for those worried about the future of the republic.

A tariff regime set by one president can be modified or eliminated by another president. The biggest worry of Kagan and others remains whether there will even be another president.

A worst-case scenario, some Trump critics posit, is that during the run-up to a national election, Trump issues an executive order declaring that the nation’s voting systems have been corrupted by malign foreign actors and that he is declaring a state of emergency, postponing elections until he determines the threat has ended and deploying troops to enforce his order.

Indeed, Trump has already hinted at such circumstances. He constantly lies that elections have been stolen from him through illegal voting, and he has multiple times spoken of taking over elections in states he dislikes.

Under the traditional legal framework, presidential findings in the areas of foreign affairs or national security are not subject to review by the courts, which have worked from the principle that they lack access to the intelligence agencies that presidents have and therefore cannot second-guess their decisions.

Friday’s ruling offered the first hint that a majority of justices are willing to challenge Trump if they believe he is overreaching.

“This was a clear-cut case, but it does establish a helpful baseline,” said Amanda Carpenter, a former aide to Texas GOP Sen. Ted Cruz and now a researcher with the nonprofit Protect Democracy.

Gorsuch, in a concurring opinion, wrote that all presidents seek to maximize their power, which is why the framers of the Constitution specifically gave so much of it to Congress.

“Our founders understood that men are not angels, and we disregard that insight at our peril when we allow the few (or the one) to aggrandize their power based on loose or uncertain authority,” he wrote.

Roberts went perhaps even further by making a factual, common-sense assertion ― without bothering to cite evidence gathered from lower courts, as is usually the case ― to contradict Trump’s claim of an emergency: “The United States, after all, is not at war with every nation in the world.”

Roberts criticized Trump’s ability to impose, reduce, increase and eliminate tariffs on a whim under that claimed authority.

“All it takes to unlock that extraordinary power is a presidential declaration of emergency, which the government asserts is unreviewable,” he wrote, quoting later from a 1952 decision: “And as the framers understood, emergencies can ‘afford a ready pretext for usurpation’ of congressional power.”

Democracy advocates have been leery of the current Supreme Court since its 2024 decision giving broad immunity from prosecution for presidents’ “official” acts taken in office. The ruling delayed movement in the criminal prosecution of Trump based on his Jan. 6, 2021, coup attempt. Trump won his office back in the November 2024 election, and the case was dismissed under standing Department of Justice policy to not prosecute a sitting president.

Ty Cobb, a former prosecutor who served in Trump’s first-term White House Counsel’s Office, said he was glad Roberts could manage to build a six-vote bloc in the tariffs case.

“The Kavanaugh dissent is very discouraging, however,” he said of Justice Brett Kavanaugh’s 61-page opinion that found novel ways of siding with the president who pushed through his controversial nomination. “Roberts and Barrett, though, and Gorsuch to a lesser extent, seem to understand the stakes now, which is a good thing. The chief justice was direct and forceful on this.”