There’s little that President Donald Trump loves more than an emergency – or, more precisely, declaring an emergency. A formal pronouncement that we are under attack – by immigrants, by protesters, by economic conditions, by whatever a paranoid mind might conjure – can carry political benefits. Fear rarely fails, and Trump has a knack for taking the winning side of those 80/20 issues. And, legally, an emergency declaration can unlock fringe-extreme executive powers. But over the past few weeks, the federal courts have drawn a line. Not everything bad is an emergency, it turns out.
When Trump went on a tariff bender this past spring, his advisors plumbed the law books and came up with the International Emergency Economic Powers Act of 1977. Trump declared that “[l]arge and persistent annual U.S. goods trade deficits” pose an existential threat to our “economic sovereignty” – notwithstanding that a trade deficit isn’t necessarily a bad thing (it just means we import more than we export from a given country), and that we’ve run deficits for at least five decades continuously yet somehow managed to survive.
The trial-level Court of International Trade rejected Trump’s use of the economic emergency law in May, and the Federal Circuit Court of Appeals reached the same conclusion in a seven-to-four decision last week (though the court allowed the tariffs to remain in effect for now, pending final resolution of the case by the Supreme Court). In its opinion, the appeals court cast a bit of side-eye at Trump’s histrionic tendencies. “Since taking office, President Donald J. Trump has declared several national emergencies,” the court deadpanned. Indeed: several. The Supreme Court announced this week that it will take and expedite the tariff case; expect a ruling by the end of the calendar year.
Also last week, the Fifth Circuit Court of Appeals – one of the nation’s more conservative courts, covering Mississippi, Louisiana, and Texas – denied Trump’s facially preposterous effort to invoke the Alien Enemies Act to deport alleged members of Tren de Aragua, a Venezuelan street gang. In a two-to-one ruling featuring a George W. Bush nominee and a Biden nominee in the majority (against a dissenting Trump nominee), the court rejected Trump’s claim that the street gang’s presence in the United States constituted an “invasion or predatory incursion…by any foreign nation or government.”
Trump lost on every prong. The court found that a street gang, though dangerous, is simply not the same thing as an occupying force dispatched by a foreign government. Indeed, history best illustrates the silliness of Trump’s position. Since its adoption in 1798, the Alien Enemies Act has been invoked four times: during the War of 1812, World War I, World War II, and now. To quote Sesame Street: One of these things is not like the others.
And in June, Trump invoked a rarely-used emergency law to mobilize the National Guard in California to address ongoing anti-ICE protests. He claimed (preposterously) that the protests constituted “a form of rebellion” and (more plausibly) that the National Guard was needed to enforce federal laws. District court Judge Charles Breyer initially ruled against Trump and blocked the deployment, but the Ninth Circuit Court of Appeals reversed that decision, citing the need to protect federal personnel and property. But last week, Judge Breyer scaled back the scope of the deployment, ruling that Guard personnel had been used illegally to perform civilian law enforcement functions. The case is now back before the Ninth Circuit, which has temporarily paused Judge Breyer’s order.
However that particular dispute plays out, Trump’s emergency declaration in California faces an even more formidable obstacle. California has renewed its challenge now that the purported source of the emergency – the anti-ICE protests – have essentially ended. It’s unclear how the Trump administration will respond; it’s tough to justify an emergency measure to deal with a situation that no longer exists.
Of course, all the aforementioned rulings came from federal district courts and midlevel courts of appeals. Does any of this really matter, one might reasonably wonder, with the Supreme Court and its six-to-three conservative majority lurking above?
The answer is definitively yes. First, the Supreme Court takes a miniscule fraction of all cases presented to it, typically two or three percent. Even if we bump up those numbers tenfold, given the unusual constitutional issues presented by these emergency cases, a substantial chance remains that the Court declines to hear any of the cases beyond the tariff matter. If that happens, then the court of appeals ruling becomes the final word. And, while the Supreme Court does whatever it darn well pleases, a well-reasoned, strongly-supported lower court ruling certainly can be influential, and can provide the Court with a roadmap to reach a similar conclusion.
There’s very little that’s realistically going to derail Trump’s ongoing quest to expand and flex his executive power. Trolling with all caps social media posts and TikToks featuring bad-boy cusswords are cute but won’t make a dent. The only meaningful speedbump on the horizon is the midterms, which bring the possibility (the probability, perhaps) that Democrats flip the House. But even a hypothetical Democratic House majority won’t take office until January 2027. Until then, it’s up to the judiciary to limit Trump’s emergency-fueled power grab. And, so far, the courts have done that job fairly and effectively.
