Trump sees emergencies everywhere. Judges are considering whether to rein him in

Mint

5 days ago

WASHINGTON
:
Across the U.S. landscape, Donald Trump sees one emergency after another, and that is posing a host of challenges for the federal courts.
Since beginning his second term, Trump has declared in dozens of presidential documents that the U.S. faces emergencies requiring him to take extraordinary actions that circumvent normal government processes. That gambit offers him a path of unilateral action instead of the uncertain route of enacting legislation through Congress.
On Inauguration Day, Trump declared national emergencies involving energy production, border crossings from Mexico and transnational cartels. In the months since, he has proclaimed that the actions of the International Criminal Court, California water regulations and protests against his immigration policies all constitute emergencies of one form or another.
The moves have spurred many lawsuits. While the details vary, the cases share common core questions: When does the law allow Trump to claim power this way? And are the emergencies he is claiming real ones?
The president's strategy faces perhaps its biggest test yet on Thursday, when his use of tariffs to address a range of commercial, political and diplomatic issues he has labeled emergencies goes before a federal appeals court in Washington. The case is expected eventually to reach the Supreme Court; if Trump wins, legal experts say he could claim broad unilateral power to regulate the economy.
Almost all presidents are aggressive in their use of executive power, but Trump 'has gone further with declaring emergencies than other presidents have," says Samuel Bray, a law professor at the University of Chicago.
Trump early in his second term has built a mixed record in court. Several courts have rejected his proclamation under a 1798 statute, the Alien Enemies Act, that Venezuela is attempting a 'predatory incursion" of U.S. territory through the unauthorized immigration of members of a criminal gang. The president has argued that the law gives him the authority to apprehend Venezuelans and remove them without the typical due process given to immigrants who are residing in the U.S. without permission.
In June, a federal appeals court in San Francisco agreed that Trump could use emergency powers to take control of the California National Guard over the objection of its regular commander in chief, Gov. Gavin Newsom, to protect federal personnel and facilities during immigration raids in Los Angeles.
Trump enjoyed some success asserting emergency powers during his first term. In 2019, after Congress declined his request to fund a wall along the Mexican border, Trump declared a national emergency and diverted to the project $2.5 billion that lawmakers had appropriated for other purposes.
Congress voted to cancel the border emergency, but Trump vetoed the resolution. Lower courts found that Trump exceeded his authority, but a 5-4 Supreme Court issued a temporary order in 2020 allowing him to continue with construction. The justices never got a chance to hear argument over the issue, as President Joe Biden terminated Trump's emergency declaration in January 2021.
Biden didn't fare as well when he sought to cancel student-loan debt to mitigate the economic impact of the Covid-19 pandemic. In 2023, the Supreme Court said Biden's plan to forgive $430 billion in debt exceeded the powers Congress granted the president to waive or modify student-loan programs in response to national emergencies.
In the tariff litigation, two federal courts found in May that Trump exceeded the authority granted by a 1977 statute, the International Emergency Economic Powers Act, when he imposed tariffs to pressure foreign governments to meet U.S. demands. He said one set of tariffs was necessary to prod Canada, China and Mexico to step up their fight against fentanyl smuggling into the U.S., while another aimed to goad countries throughout the world to lower barriers against American exports.
The Constitution gives Congress the power to impose tariffs, but it can delegate authority to the president. The 1977 law allows the president to take economic steps to deal with 'unusual and extraordinary" threats to America's 'national security, foreign policy, or economy."
Whether the statute provides for tariffs at all is hotly debated, as is the difficult question of whether courts can and should second-guess a president's decision to proclaim that an emergency exists.
In court briefs, the New York wine importer VOS Selections and other companies challenging the tariffs say Trump himself acknowledged that there is no emergency.
'At least nine times, Executive Order 14,257 describes the trade deficit as 'large and persistent,'" the plaintiffs say. A persistent problem 'that has been a consistent feature of the U.S. economy for 50 years" can't be deemed an emergency, they say.
In reply, the Justice Department says that trade imbalances have grown into an emergency over recent years. But, as it has in other cases, the administration argues that judges are powerless to second-guess Trump's determinations.
'Courts cannot substitute their exercise of discretion for the president's," the government says.
Historically, that has been the practice, says Peter Shane, a constitutional scholar at New York University. 'Federal courts are usually pretty deferential to presidential fact-finding when it comes to an emergency," he says.
The Constitution provides the executive branch no explicit authority to set aside normal laws, suggesting the framers 'suspected that emergency powers would tend to kindle emergencies," as Justice Robert Jackson put it in a 1952 opinion.
Nonetheless, presidents have over time asserted extraordinary authority to deal with contingencies that Congress didn't anticipate—and take actions that Congress didn't authorize. President Richard Nixon, faced with a Democratic Congress critical of his Vietnam War policies and conservative agenda at home, took unilateral action on several initiatives.
Congress tried in the 1970s to reclaim some of the power that Nixon had consolidated in his so-called imperial presidency. The National Emergencies Act of 1976 established procedures for the president to declare emergencies, set a renewable one-year time limit on emergency declarations and gave Congress authority to cancel an emergency declaration.
Trump has invoked that act at least eight times this year.
Write to Jess Bravin at [e-mail]