Today on TAP: Three key cases coming before the Supreme Court, beginning with the tariff case to be argued Wednesday, may not go so well for him.
Trump's increasingly flagrant efforts to govern as an outright dictator leave us heavily reliant on the Supreme Court to defend what is left of the rule of law. As we all know too well, that reliance is pretty frail, since the Roberts Court has been outrageously deferential to Trump. However, there are some glimmerings of hope in three pending landmark cases.
The first case, on Trump's invocation of emergency powers as a rationale for raising and lowering tariffs at his whim, will be argued this Wednesday. Trump has argued that the 1977 International Emergency Economic Powers Act (IEEPA) gives him the authority to impose tariffs at will.
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Last week, Senate Democrats led by Sen. Tim Kaine (D-VA) did something significant that could influence the Court, and they got five Republicans to join them. They got the Senate to pass resolutions holding that Trump's imposition of extra tariffs on Brazil and Canada, and his so-called universal "reciprocal tariffs," were illegal because they were not done in a genuine emergency. Kaine invoked a law that allows Congress to block a president's emergency powers and compels an up-or-down vote by the whole Senate. Even though House Speaker Mike Johnson (R-LA) used a parliamentary manuever to prevent the resolutions from coming to a vote in the House, the Senate's actions carry weight.
The choice of countries is significant. In the cases of both Brazil and Canada, Trump said in his own words that the tariffs had nothing to do with economic factors, much less an economic emergency. In the tariffs on Brazil, where the U.S. has a trade surplus, Trump was retaliating against Brazil's prosecution of former President Jair Bolsonaro, a Trump crony. In the most recent Canadian case, Trump made clear that he was acting out of spite. He was furious at an anti-tariff ad using a clip of Ronald Reagan, sponsored by the premier of Ontario, Doug Ford.
Trump's use of punitive tariffs also runs afoul of a doctrine invented by the Roberts Court and used to block several of Biden's uses of executive power. Under the so-called major questions doctrine, Congress is required to be explicit when it gives the president the power to make executive decisions with vast economic and political significance. IEEPA doesn't even mention tariffs.
Lower courts have ruled against Trump. In August, the U.S. Court of Appeals for the Federal Circuit held that "IEEPA's grant of presidential authority to 'regulate' imports does not authorize the tariffs" that Trump had imposed.
In addition, there is a rare array of amicus briefs spanning the entire political spectrum explaining why Trump's invocation of an ongoing emergency is preposterous. So even this Court would have to go through extreme contortions to uphold Trump's use of IEEPA to punish Brazil and Canada, and validate his claim of a perennial economic emergency.
THE SECOND CASE INVOLVES LISA COOK, the Federal Reserve governor whom Trump tried to fire on the bogus grounds that she had falsified a mortgage application. In its preliminary ruling on September 30, the Court allowed Cook to keep her job pending a full hearing in January. Most court-watchers believe that if there had been five votes to dismiss Cook immediately, the Court would have allowed Trump to fire her.
Cook has already demonstrated that her mortgage application was accurate. On the larger question, the Court has opined in earlier cases that it considers the Federal Reserve in a different, more protected category than other regulatory agencies with term appointees that the Court may allow Trump to fire during their terms, though a definitive ruling on that question is still to come. So both on the legal question of whether a president may fire a Fed governor, and on the trumped-up reason for the firing, Trump could well lose this one, too.
The third major pending case is on whether the 14th Amendment means what it says, namely that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Trump argues that if parents are in the country illegally, their offspring are not entitled to birthright citizenship. But that's not what the amendment says, and this has been settled law for more than a century. Most Court experts expect Trump to lose this case as well.
While there has been concern that Trump might defy Supreme Court rulings, which would be a deepening step to outright dictatorship, these three cases are close to self-executing. There is no practical way for Trump to nullify the votes of a sitting governor of the Federal Reserve. If he loses the tariff case, importers will simply stop paying the tariffs. And even in the case of birthright citizenship, if Trump tried to ignore the Court he would find himself in a bureaucratic thicket trying to sort out literally millions of individual cases; and in every case, a person illegally denied citizenship could quickly get an injunction, since the lower courts would respect the Supreme Court even if Trump tried not to.
Admittedly, the Roberts Court is a slender reed. But it may be a stronger one than we fear.