The Supreme Court has been asked to rule on the emergency powers used by President Donald Trump to advance two key policies of his mandate: the decision to deploy the National Guard on American soil in support of his immigration policy, and the imposition of tariffs on almost every trading partner.
In December, the Court issued a ruling which was unfavourable to the administration regarding the deployment of the National Guard in Illinois. At the time of writing, a ruling is expected that could declare the Liberation Day tariffs illegal. In addition, the Court is examining the dismissal of Lisa Cook, a member of the Federal Reserve Board.
Scepticism among judges
The White House imposed the reciprocal tariffs in April by invoking the International Emergency Economic Powers Act (IEEPA, 1977), according to which the president may suspend property and transactions related to a foreign power after declaring that it constitutes an unusual and extraordinary threat to the national security, foreign policy, or economy of the United States.
In November, the Supreme Court heard the legal representative of the federal government and, according to the unanimous account of the American press, the judges accepted the arguments of Solicitor General John Sauer with scepticism. The most interesting observations came from the six judges appointed by Republican presidents, three of whom were appointed by Trump.
Chief Justice John Roberts delved into the major questions doctrine, according to which the executive, when faced with important issues, does not act without a clear mandate from Congress. This administration is the first to have used the powers conferred by the IEEPA as a justification for imposing tariffs on any product from any country, in any amount, for any length of time. This seems unsuitable to Roberts for dealing with the declared emergency.
Samuel Alito, an authority on the subject, highlighted some practical aspects of the major questions doctrine in an interview with the Italian newspaper Corriere della Sera, which surprisingly received little comment. Alito notes that when a president says, I can't get laws passed in Congress, let me take a look at the existing rules to see if I can find something that allows me to do what I want, the major questions doctrine asks: Is this how Congress wanted that law to be interpreted?. If, for a long time, everyone believed that its meaning was obscure and not used to do anything important, when a president suddenly says, Here you go, I have enormous power under this little clause, the major questions doctrine states that this is probably not what Congress intended.
Brett Kavanaugh emphasised that Congress's purpose in passing the IEEPA was to provide the president with tools to respond to an emergency in an appropriate manner. Neil Gorsuch pointed out that, following the administration's logic, a future president could declare a climate emergency to obtain broad sanctioning powers over American industry.
Constant conflict?
In the same interview with Corriere, Alito places the current situation in a decade-long political cycle and a secular trend. During the 20th century, [Congress] delegated authority to the executive branch. And now, due to the polarisation of the country, it is almost impossible for Congress to pass laws, which are therefore largely implemented through executive agencies. The growing trend, from Barack Obama to Joe Biden, has been for presidents to resort to their own power or what they believe to be their own power and executive orders have increased.
In Trump's second term, many orders have been challenged legally and, if one of the 680 district judges says it is unconstitutional or illegal, the case comes to us [the Supreme Court] as an emergency matter. Since January, there have been 70 emergency cases, including those concerning the deployment of the National Guard and the tariffs.
Alito considers that institutions all work, to a certain extent, and that serious tensions could be the product of a particular era that will end, but at the moment there are serious frictions: It is very, very difficult to pass laws in Congress; presidents extend their powers to the limit, if not beyond the limit; judges sometimes exceed their powers; and the things the president does are challenged in court. So, we have a constant conflict, potentially, between the president and the courts.
A real brake?
If, in the past, presidents were careful with their words, today, in Congress and within the executive, they have gone too far, to the point that the judiciary is sometimes regarded as an illegitimate institution. Alito can only conclude: We can issue a ruling, explain it, and hope, as should happen in a society that believes in the rule of law, that the president will obey, as in the case of the National Guard.
Since this summer, Trump has sent the National Guard to Los Angeles, Portland, Washington DC, Memphis, Chicago, and New Orleans in support of Immigration and Customs Enforcement (ICE), the federal immigration enforcement agency, increasingly denounced as a paramilitary force serving the president's agenda.
The protests, and the tragic cold-blooded killing by ICE of a woman in Minneapolis, have been contested with competing rhetoric by Trump and Democratic governors, while opposition by States to the deployment of the National Guard has involved the courts up to the highest level.
In the ruling Trump vs Illinois, which was unfavourable to the presidency, the Supreme Court was divided 6-3, with Alito, Clarence Thomas, and Gorsuch dissenting, while Roberts, Kavanaugh, and Amy Coney Barrett voted with the three judges appointed by Democratic presidents.
Although the Court's unsigned order applied only to Chicago, Trump withdrew the National Guard from California, Illinois, and Oregon, which had opposed the measure. Meanwhile, Trump continues his law-and-order policy, implementing ICE actions and threatening to resort to the Insurrection Act to deploy the military within the country. And, without waiting for the verdict on the IEEPA, he has been exploring other legal means to freely impose tariffs.
