Not Everything Can Be An Emergency

Tomorrow’s argument before SCOTUS is about far more than Trump’s illegal tariffs

US President Donald Trump shakes hands with US Supreme Court Associate Justice Amy Coney Barrett. Photo by SAUL LOEB / AFP.

On Wednesday, the Supreme Court will take up a case of monumental importance.

On its surface, Learning Resources v. Trump, which is really two consolidated cases, is about whether Trump’s “Liberation Day” tariffs were authorized by law. That alone is weighty stuff. Should the Court agree with the two panels of judges who have struck down Trump’s tariffs, it could deal a blow to the White House’s economic agenda and strategy.

But this case is potentially about far more than tariffs. Trump justified his tariffs in the first place by issuing decrees over imaginary emergencies: the “fentanyl emergency” at our Northern border with Canada and the “trade deficit emergency” with the rest of the world, which has been going on for decades.

Trump’s attorneys argue that he, and only he, gets to decide what is an emergency. And if the radical Supreme Court majority agrees with him, it would set us on a fast track to autocratic rule in the U.S., where “emergency rule” becomes the norm, not the exception.

The emergency decree president

Donald Trump has declared nine national emergencies in the first nine months of his term. On day one, he declared

• a national emergency at our southern border;

• a national domestic energy emergency; and

• a national security emergency designating foreign cartels as “terrorist” organizations.

Ten days later, on February 1, 2025, Trump followed up with three executive orders declaring emergencies over the illicit drug trade:

• a national emergency over the flow of drugs across our northern border (used to impose tariffs on Canada)

• a national emergency over the flow of drugs across our southern border (used to impose tariffs on Mexico)

• a national emergency over the synthetic opioid supply chain in China (used to impose tariffs on China)

He issued sanctions on the International Criminal Court on February 6, 2025, freezing assets and issuing travel bans on ICC staff and supporters, citing the ICC’s investigations into alleged war crimes in Afghanistan and Gaza, which Trump claimed harmed U.S. national security interests.

Then on April 2, 2025, the day after his “Liberation Day” announcement, Trump declared the U.S. trade deficit with foreign countries to be a “national emergency” that justified “reciprocal tariffs” across the board.

Finally, on July 30, 2025, Trump declared recent actions by the government of Brazil to be a “threat to the United States” because the country was prosecuting his friend and ally Jair Bolsonaro. Trump levied 40 percent tariffs on Brazilian exports.

All of the executive orders imposing tariffs and sanctions cite the same statutory authority, with Trump routinely declaring the following in each order:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)(IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.)(NEA), section 604 of the Trade Act of 1974, as amended (19 U.S.C. 2483), and section 301 of title 3, United States Code….

Given this, there arises a logical baseline question: Do IEEPA and the NEA actually grant to Trump broad, unchecked powers to levy tariffs at will without input from Congress?

Another way to put this: Did the legislative branch cede to the executive the power to tax imported goods at any level, so long as the President declares a “national emergency” to justify it?

The three-judge panel of the Court of International Trade that first heard the Learning Resources case found resoundingly that it had not. And the Federal Circuit, sitting en banc, agreed.

Now that same question is before the Supreme Court this week, and its implications are far-reaching should they decide that the power was, in fact, ceded to him by Congress. To understand why, we need to take a step back and discuss how other would-be authoritarians regularly abuse the power of “emergencies” to seize and keep power.

“Emergency rule” is how autocrats assume and justify control

Several of the most infamous fascists of the 20th century (e.g. Hitler and Mussolini) as well as modern autocratic leaders (Marcos and Pinochet, and in the 21st century Erdoğan, Orbán and Putin) have declared states of emergency or similar decrees and exploited threats, both real or manufactured, to suspend democratic rights, consolidate control over state institutions, suppress opposition and assume long-term autocratic power. Trump is cut from the same autocratic cloth.

The most infamous fascists of the 20th century did this, of course. Adolf Hitler issued the “Reichstag Fire Decree” following the burning of the German Reichstag parliament building in 1933, which he blamed on a “communist plot.” That decree suspended basic civil liberties, including freedom of press and assembly, and permitted indefinite detention without trial. From there, Hitler crushed political opposition and imposed the Enabling Act, granting himself full dictatorial powers.

Benito Mussolini similarly blamed “communists” for chaos in Italy and issued emergency decrees that led to the outlawing of the opposition and censoring of the press. He then cooked up the Acerbo Law, which stated that the party gaining the largest share of votes would have two-thirds of the seats in the Italian parliament. This was Mussolini’s unique way of rigging the election. Along with his “exception laws,” this ushered in two decades of fascist rule.

Post-war examples include Ferdinand Marcos of the Philippines and Augusto Pinochet of Chile, who both cited the threat of communism to suspend liberties and eventually take control of their respective countries.

In the 21st century, we’ve seen three strongmen Trump openly admires—Recep Tayyip Erdoğan of Turkey, Viktor Orbán of Hungary and Vladimir Putin of Russia—declare states of emergency to destroy the opposition, rewrite the constitution, and assume autocratic powers.

Erdoğan cited a failed coup attempt in 2016 to justify the elimination of civil liberties and rights and—get this—purged over 100,000 civil servants whom he deemed part of the liberal conspiracy against him.

Putin cited “Chechen terrorism,” sometimes wholly fabricated, along with foreign wars including in Ukraine, to outlaw protests and amend the Russian constitution to enable him to rule indefinitely.

Orbán in particular is a blueprint for the Trump regime. The Heritage Foundation has openly embraced Orbán’s brand of “illiberalism” that weaponizes Christian Nationalism and regularly cites a “migration crisis” as justification for weakening the courts, limiting press freedom through oligarchic control of the media and restricting opposition activity.

If that all sounds familiar, it is by design. The Trump playbook is the modern autocratic one. We are living through it at breakneck speed, likely because of Trump’s advanced age and the need to get this all done while he is still around.

The power to impose tariffs is the power to tax

So what does all this have to do with the tariff case the Supreme Court is hearing on Wednesday?

First off, it’s best not to think of this merely as a “tariff case.” The question that could reach the High Court is ultimately, “Will there be any real limits on the President’s ‘emergency’ powers?”

After all, the power to impose tariffs is actually the power to place a huge tax on the American people without ever passing a single law. The Constitution assigns the power to tax to Congress. And yet here is the executive branch slapping hundreds of billions in new taxes on the public without any legislation by Congress.

That leaves only the courts to put a stop to Trump’s unprecedented power grab. As the non-partisan Brennan Center for Justice noted,

The stakes of this case reach far beyond trade policy. The Court’s decision could shape whether the use of emergency powers to bypass Congress becomes a tool of routine governance, with profound implications for the constitutional separation of powers and limits on presidential authority.

As the Brennan Center points out, Congress has been careful in the past to delegate to the executive only certain parts of Congress’s power over tariffs. These delegations have been specifically conditioned, usually with time limits or ceilings. Trump is trying to blast through all such limits with “national emergencies” and by invoking IEEPA—which, as two courts have already found, does not even mention tariffs.

Unfortunately for us all, IEEPA does authorize the declaration of national emergencies under certain circumstances to deal with trade matters. And if the Supreme Court must decide whether what the White House says is an emergency really isn’t one, under a statute that already grants the President emergency powers, we’ve probably already lost the case. That’s because courts have regularly deferred to the White House on issues of foreign relations and national security—though this would certainly test the limits of that.

The Trump White House actually goes one step further and argues that courts do not even have the power to review whether an emergency exists or whether a precondition for invoking IEEPA—i.e., the existence of an “unusual and extraordinary threat”—has been met.

This argument that “emergency decrees” are judicially unreviewable in national security and foreign affairs is dangerous in the extreme. Just think about what else it might cover. Trump sought to deploy federalized National Guard troops to Oregon and Illinois under Title 10, citing a “rebellion” and inability of the “regular forces” to execute federal law. Three separate federal court opinions noted that this is a complete fantasy; there was no evidence of a rebellion or a situation that was out of control—just as there is no evidence of a fentanyl crisis with Canada or that there is suddenly a trade deficit “emergency” after decades of high trade imbalances.

Are our federal courts truly without power to review whether Trump’s “emergency” decrees over “national security” are entirely pretextual? That should not and cannot be correct, or the potential for abuse and catastrophe looms large.

Trump has recently mused, for example, about invoking the Insurrection Act. That would allow him to deploy federal troops to act as military police as an exception to the Posse Comitatus Act. Such a move would require him to issue a presidential decree that there is widespread civil unrest or armed rebellion.

But what if the truth didn’t matter to the courts? What if Trump could simply make stuff up and call it an emergency? We already know that he is willing to claim there are fires burning Portland to the ground where there are none, and to declare Chicago to be a war zone when the streets are quiet. These were the pretexts he cited for his attempts to deploy federalized troops to these cities, both of which remain blocked—for now.

Were the Supreme Court to rule that Trump alone can decide, at least within the context of IEEPA, what is a national emergency, and that the courts have no power to second guess that determination, it could open the door wide to autocratic rule by emergency decree, just as we have seen in other countries where dictators define “emergency” however they please.

Tariffs should count as non-delegatable “major questions”

Before we completely panic, there remains a distinct possibility that the Court could decide not to touch the radioactive question of whether Trump’s invocation of emergency powers under IEEPA was lawful.

That’s because there is a threshold question: Did Congress actually delegate the power to impose tariffs to the President in IEEPA, and if so, was that delegation constitutional?

If there was no lawful delegation of tariff authority by Congress, then the Supreme Court need not address the more troubling question, i.e. whether Trump alone can declare whatever he wants to be an emergency, even if it clearly is pretextual. They won’t reach that question because they will have found that the tariffs were improper out of the gate.

Perhaps the justices will see the dangerous rocky shores on the horizon, and at least five will answer, “Not today, no thank you,” and then steer the ship elsewhere. (There is a slight possibility that the Court could punt by finding that the wrong lower courts assumed jurisdiction over the cases, but I won’t bore you with a subject matter jurisdiction discussion more appropriate for a 1L civil procedure class.)

So what exactly is the argument in favor of finding “non-delegation” of the tariff power by Congress to the executive under the IEEPA? I’ll try to put this in plain language.

Understand first that the Roberts Court has invented something out of whole cloth called the “Major Questions Doctrine.” I say “invented” because there’s actually nothing in the Constitution nor any of our laws that supports it. Still, under Chief Justice Roberts, the Major Questions Doctrine says that whenever the White House undertakes actions with “vast economic or political significance,” that program must have specific authorization from Congress.

The conservative majority on the Court has used the Major Questions Doctrine as a kind of stand-in for a conservative principle called the “non-delegation” doctrine, which says broadly that it’s unconstitutional for one branch to delegate its powers to another. That argument seems to arise whenever the conservatives want to limit the power of federal agencies, to which Congress has delegated implementation of its laws because such agencies have greater expertise and know-how than Congress.

The Major Questions Doctrine is like a non-delegation doctrine “lite.” It doesn’t say that branches can’t delegate their authority. It just says they can’t do that without “specific authorization” when the stakes are big.

As I wrote back in April, the Major Questions Doctrine has already had a big effect:

For example, the Supreme Court used the Major Questions doctrine to strike down the Biden-era attempt to forgive massive student loan debt. In that case, the administration argued that the HEROES Act authorized the forgiveness program because it gave the Secretary of Education the power to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs…as the Secretary deems necessary in connection with a war or other military operation or national emergency.” (Emphases added.)

Did you catch that? That was an instance where the law specifically authorized action by the Secretary of Education in the event of a “national emergency.” Biden pegged the program to the Covid epidemic, because a bigger “emergency” could hardly be conceived.

But the majority on the Court still didn’t buy that, probably because they just didn’t like the idea of loan forgiveness. So the justices invoked the Major Questions Doctrine to strike down the loan forgiveness program.

But in doing so, the Supreme Court set up a precedent that will be hard to get around. In the case before the justices tomorrow, IEEPA gives the President even less explicit authority to act. It doesn’t even say anything about tariffs. So there’s at least a strong argument that Trump, like Biden, has attempted to embark upon a new program with “vast economic or political significance” without specific authorization from Congress.

As Prof. Steve Vladeck noted in his preview of tomorrow’s arguments, if

the broad but open-ended delegation of power in the HEROES Act was insufficient, it sure seems like IEEPA isn’t any clearer. And it also seems like President Trump’s tariffs ought to meet any judge’s test for a matter of “vast economic or political significance”; one need look no further than the stock markets for proof of that. Thus, if judges (and justices) are going to be consistent about the major questions doctrine, there seems to be plenty of support for the conclusion that IEEPA is insufficiently clear to support Trump’s tariffs.

But what if…

Vladeck knows that’s a big “if.” Lately, SCOTUS has been anything but consistent. Through its “emergency docket,” it effectively has overruled long-standing precedents, such as cases forbidding impoundment of funds by the White House or limiting the power of the President to fire those charged with oversight. And it has done so without giving the public any rationale whatsoever for its actions.

By all rights and its own logic, the Court should find that Congress never granted Trump the authority to impose tariffs under IEEPA. And if Congress had attempted to delegate that authority, the Court should find that this was a violation of the Major Questions Doctrine, because this level of tariffing is a BFD, and Congress didn’t delegate it with any kind of specific authorization. It didn’t even use the word “tariff”!

We’re all distressingly past the point, however, of trusting this Court to abide by logic or precedent. If the radicals on the Court are bent on creating a true “unitary” executive with plenary powers, they will find a way to pretzel-twist their way into granting it to him, just as they did with broad immunity from criminal prosecution.

That’s why tomorrow’s arguments will be watched carefully for signs of a majority ready to give Trump the full Orbán treatment. It’s a perilous time, and the future of our democracy rests in judicial hands that cannot be trusted.

The best we can hope for at this point is a punt, with the Court essentially saying, “You can’t impose broad tariffs under this law, whether or not your emergencies are legal and valid. So go back and try some other way.”

Any other outcome that affirms Trump’s power to levy the tariffs as he did will reveal not only the Court’s sheer hypocrisy but also its utter complicity in the dismantling of our democracy. The radicals, of course, have already taken big steps toward that end. The only question is whether they will draw the line here.