The United States Court of International Trade ruled that President Trump did not have authority to “impose unlimited tariffs on goods from nearly every country in the world” and blocked Trump’s prized tariff program. Normally, only Congress can enact tariffs, but Trump had argued that the International Emergency Economic Powers Act (IEEPA) gave him the right to introduce the tariffs because the United States economy was in an emergency. What the court ruled was, in essence, that this is not an emergency, and even if it was, the tariffs were not correctly dealing with it.
Trump’s lawyers immediately announced their intention to appeal the decision, and it will probably go to the Supreme Court. Their arguments are twofold.
- This is an emergency. “These deficits have created a national emergency that has decimated American communities, left our workers behind, and weakened our defense industrial base – facts that the court did not dispute,”
- The courts have no right to define what is or is not an emergency, and in declaring that the tariffs are not dealing with the situation, the courts are deciding economic policy for the country. “It is not for unelected judges to decide how to properly address a national emergency.”
So one must ask whether there is a legal definition for ‘emergency’. In fact, the IEEPA actually spells it out: there has to be a threat to national security, foreign policy, or the U.S. economy; the threat must be “unusual and extraordinary;”
However, this definition leads circularly back to definitions. Who defines what is a threat, or what is ‘unusual or extraordinary’?
This is where the Supreme Court may step in. Trump’s buddies may agree with him that only he, and not the courts, has the right to define – as arbitrarily as he chooses — an emergency and how to deal with it.
Immigration
Normally, all persons in the United States, citizens or not, have the right to due process. However, Trump has cited an ancient law that says that due process may be waived if the United States has been invaded by a foreign country. He has invoked the Alien Enemies Act. passed in 1798 when America was feuding with France. It permits the president to summarily detain and deport citizens of countries with whom America is at war.
Trump’s ICE rounded up Venezuelans and deported them to El Salvador, on grounds that Venezuela had invaded the USA and that we were at war with them. Here’s the wording of the AEA: “[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.”
The lower courts ruled that there was no ‘invasion’ and that the USA was not ‘at war’ with Venezuela, and therefore the deportations without due process were illegal.
Similar to the tariff arguments, Trump claimed that the court was overreaching; only the President can determine whether there is an invasion or not. Apparently, if a single Venezuelan sets foot on American soil, the President may consider that an invasion and start deporting thousands of Venezuelans to horrible gulags overseas.
The Supreme Court punted the first time around, but the matter will still come back to them. They will have to determine who has the right to define an ‘invasion’ of the USA, and they may well decide that Trump is the only person with that right.
There may be other cases in which the issue boils down to “Who gets to define *****, the courts or the President, or some other body?”