Trump’s emergency powers grab

0:01Plenty of people have been caught up in President Trump's emergency declarations. The most high profile are undocumented immigrants. But there's also Victor Owen Schwartz, who imports wine. Georgina Terry, who sells bikes for independent women. Why pay me to fix a flat tire when you can figure it out on your own? David Levi, who makes kicky little musical toys like a banana keyboard. And Dan Pastore, who sells fishing gear. This week, they're all in court suing President Trump because his tariffs hurt their businesses. Trump says he can unilaterally levy tariffs because he has declared an emergency.

0:38The court is going to decide whether that's legal. It is possibly the biggest self-inflicted economic blow that the United States has done to itself in my lifetime. And the courts could just make that all go away. So, you know, that's exciting. That's ahead on Today Explained.

1:03This is Today Explained. Ian Millhiser covers the Supreme Court for Vox, and he has written two books about the Supremes. All right, Ian, so this week there is a small court hearing a very big case. Are President Trump's tariffs legal? Tell us what's going on. Yeah. So there is this court called the U.S. Court of International Trade, which it is a federal court that hears disputes arising out of America's trade laws. And the biggest trade story, I mean, maybe of the last 30 or 40 years is Donald Trump's tariffs and whether the president has the power to essentially impose enormous new taxes on imports that are expected to drive up the price of goods for every American.

1:51I listened to the oral argument yesterday in the trade court. And while I'm not certain what's going to happen, what I heard is three judges that sounded really skeptical of the tariffs. And so I think it is more likely than not that we're going to get a court order pretty soon, which could make the tariffs go away. Who are the plaintiffs in this case? Who is suing Trump? so the case is called vos selections versus trump um vos selections is just a liquor and importer um you know they they import you know italian wines and you know various bottles from other countries and so obviously whenever they bring a bottle into the country they have to pay the tariff and that's not good for their business and then there are four or five other businesses who've signed on with plaintiffs and it's a similar story with all of them like one's like a bicycling company.

2:42One makes like electronic products and they have to import some of their components. And so they're paying tariffs on these components that they're getting overseas and they don't want to pay that tax. So they're just in court saying, look, these taxes are illegal. We shouldn't have to pay. Our plaintiffs have no certainty when it comes to what the rates are going to be. It's very difficult. And that's, of course, one of the reasons that one person, the president, shouldn't have this unchecked tariff power is that without any kind of restrictions, it can be changed on a whim. So the statute, the federal law that Trump relied on when he put the tariffs in place, it's called the International Emergency Economic Powers Act.

3:31And the key word there is emergency. The statute says that Trump is allowed, does have sweeping power to regulate the importing of foreign goods, but only when there is, and this is the language that the statute uses, an unusual or extraordinary threat to which a national emergency has been declared.

3:57Much of the argument yesterday focused on what those words unusual and extraordinary threat is. The House committee report talks about how they expected the emergencies to be rare, brief, and not of a normal ongoing circumstance. Under those three things, the trade deficit doesn't meet any single one of those. Trump claims that the reason we need these tariffs is because the United States has trade deficits. It buys more stuff from many countries than it sells. And we've had trade deficits for decades. Like trade deficits aren't really an unusual thing. I have a trade deficit with the grocery store.

4:37I buy more stuff from them than, you know, than I sell. So the argument is pretty straightforward here. It's just like trade deficits are ordinary. Like even if you think that trade deficits are bad, they're not unusual or extraordinary. And so the argument is that this statute, which only lets Trump respond to unusual and extraordinary threats, doesn't apply in this case. I'm asking this court to be an umpire. I'm not and and call a strike. And you're asking me, well, where's the strike zone? Is it at the knees or slightly below the knees? And I'm saying it's a wild pitch and it's on the other side of the batter and hit the backstop.

5:20So we don't need to debate the difference between the strike zone at the knees or slightly below. And what is the government's defense of the tariffs, as you heard it yesterday? So the government's primary response to this argument is essentially to tell the courts, you can't touch us, ha ha ha. I mean, they put that in a legalistic way. They claim that the question of whether such a threat exists is what's called a political question. And political question is legalese for the courts don't get to decide it. You know, it has to be decided by the other two branches of government. And so they're primarily just saying, look, courts, doesn't matter if this is an unusual threat or not.

6:01You don't get to make that decision. Donald Trump gets to make that decision. The president gets to make that decision. You know, often, especially in constitutional cases, the core question is who gets the final word on this? And the plaintiffs say that the court should have the final word on this. And Trump says that he should have the final word on it. But since no one has yet cited a dictionary definition for unusual or extraordinary, I thought I would offer one. Unusual just means not usual. That's the Merriam-Webster dictionary definition. And extraordinary is going beyond what is unusual, regular, or customary.

6:38That fits with the state of affairs that this executive order describes. It explains. OK, so we have three judges, as I understand it, bipartisan. This is not a court that typically gets a ton of attention, right? This is it's not the Supremes. Right. What vibe were you getting from them yesterday? Do you get the sense that they seem to favor either the government's argument or the argument that the plaintiffs are making? So broadly speaking, there's three ways this could turn out. One, they could just uphold the tariffs and then the tariffs stick around, assuming that a higher court doesn't step in.

7:14The second is that they just think this law that Trump relied on doesn't allow these particular tariffs to exist. That would be a very narrow opinion. And I don't know that in a decision that says that would necessarily get rid of the tariffs for very long, because there's other statutes, the Trade Act of 1974, which also potentially allow Trump to impose tariffs. It would just take longer for him to do it under the Trade Act. So if they strike this down on statutory grounds, we could be back having this argument a few months from now. And then the third possibility is during the Obama and Biden administrations, You know, a bunch of Republican judges and justices came up with very aggressive theories to limit the power of the president because they didn't want Obama and Biden doing things like canceling student loans.

8:06And these judges could potentially take these doctrines that were created to go after Joe Biden and just apply them to Donald Trump. And if that happens, it could be that the tariffs are gone for good. so i i don't say this with any degree of certainty but i'm like 60 to 70 percent sure that they're going to strike the tariffs down oh they did have you know lots of questions for both sides in response to trump's lawyer i mean they they did not buy this argument that the that's a political question the court shouldn't be involved at all you know there was a lot of mockery of that question. We have a problem with peanut butter.

8:45We have a national shortage of peanut butter. And so can the judge, can the president declare an extraordinary emergency? Well, I think it probably depends on a number. You like peanut butter? There's no limit. What you're saying is there's no limit. They brought up constitutional and quasi-constitutional arguments like this thing called the major questions doctrine, which essentially says that when the president tries to do something that's too big, that the court should be very skeptical of that. Trump argued that the major questions doctrine doesn't apply to him, and the judges didn't seem to buy that at all.

9:24So, you know, it's not like they all stood up and said, verily, we three judges intend to strike down the tariffs, and you can, you know, reporters can listen to us say this and know with certainty what's going to happen. But it sounded more like the sort of hearing that the government loses in, that it sounded like the kind of hearing where the government wins. That said, I would be stunned if this doesn't go to the Supreme Court. The U.S. Court of International Trade, like, you know, these are experts on trade. I, you know, I was impressed by the professionalism of the judges that I heard hearing the case yesterday.

10:00day. But like these are obscure officials like we generally don't want rando trade policy walks to be deciding the most important political questions for the United States. You know, generally that's a matter that we want the big hitters to be brought in. And in this case, the big hitters are unfortunately the Supreme Court justices. So I'm, you know, I'm fairly confident that this is going to go up to the Supreme Court eventually. Ian, in the second half of the show, we're going to be talking about the frequency with which President Trump has said he must do something because it's an emergency.

10:39He's got to do tariffs because it's an emergency. Some of the moves on immigration because it's an emergency. If this court rebukes the president on tariffs and says, hey, you called it an emergency, but we don't think it is. Does that mean that we might be looking at a near future in which courts are far more skeptical of the president using it's an emergency as an excuse to do what he wants? Yeah. So this statute is a little different than a lot of the other emergency statutes. This one, and I'm just going to again, I'm going to read it again. It says that the powers that Trump is invoking here can only be used to, quote, deal with an unusual and extraordinary threat with respect to which a national emergency has been declared.

11:25Now, I read that and I hear there are two things that needs to happen. One is that the president needs to declare an emergency. He's done that. I don't think the courts can review that and that's fine. But the second thing is that the statute also says that whatever he's reacting to actually has to be an unusual and extraordinary threat. So, I mean, I don't know what the courts are going to do here, maybe they're going to start, you know, second guessing every emergency declaration that a president that a president makes. And I don't really think that would be a good idea because a lot of the time these statutes, again, they aren't really about like, is this something that you and I would call an emergency?

12:04They're about, is this so important that it warrants the president's personal attention? And I don't know that we want courts getting involved in making those calls. But in this case, this statute says two things have to happen. It's not just that the president has to declare an emergency, it's that there has to actually be an extraordinary and unusual threat. And so I'm hoping the courts are going to say, look, we can just set aside the question of whether Trump was right to declare an emergency and focus on whether that unusual and extraordinary threat exists.

12:41Vox's Ian Millheiser Up next, an expert on presidential emergencies Is getting a little worried

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15:37You're listening to Today Explained. I'm Noelle King. Elizabeth Goytin is with the Brennan Center, where she co-directs the Liberty and National Security Program. Elizabeth is an expert, maybe even the expert, on presidential emergency powers. And she says President Trump has sure been using his. President Trump declared eight national emergencies in his first 100 days in office. That's a rate that far surpasses any previous president, including Trump himself, during his first term in office. These emergency decorations include a declaration of emergency at the southern border. All illegal entry will immediately be halted and we will begin the process of returning millions and millions of criminal aliens back to the places from which they came.

16:31There's a declaration of an energy emergency. We will drill, baby, drill. A declaration of emergency in order to impose sanctions on personnel at the International Criminal Court. As far as America is concerned, the ICC has no jurisdiction, no legitimacy and no authority. There is an emergency declaration to impose sanctions on drug cartels that have been designated as terrorist groups. They're killing our people. They're killing 250 ,000, 300 ,000 American people a year. Not 100, like has been reported for 15 years. And then there are four emergency declarations that were issued to impose tariffs on, respectively, China, Mexico, Canada, and then pretty much the whole world.

17:25Eight emergency declarations in 100 days.

17:30So eight emergencies sounds like a lot, especially because for most Americans day to day, I don't think we feel like we're living in a time of eight distinct emergencies that we weren't living in, you know, six months ago. Why does the president do this? A national emergency declaration is an extraordinarily powerful thing. It unlocks enhanced powers that are contained in 150 different provisions of law, all of which say something like in a national emergency, the president can do X or in a national emergency, the president doesn't have to do Y. So these are powers that allow the president to take actions that go beyond what Congress has authorized in non-emergency situations.

18:17And in some cases, they allow him to take actions that Congress has expressly prohibited in non-emergency situations. And this can be a very tempting tool in order to implement policy in situations where there's not sufficient support from Congress or where Congress has actually prohibited that policy. So emergency powers, you can see why the temptation is there for presidents to use these powers rather than go through the normal policymaking and lawmaking process. I can certainly see that. And President Trump sometimes behaves as if the emergency powers were, you know, granted from upon high by God.

19:03But actually what you're saying is they come from Congress. This is Congress saying we will allow you to have additional power in times of emergency. When and why did Congress initially do this? I mean, Congress has been providing these powers to the president since the founding. Our current system in which the president declares a national emergency and that declaration unlocks powers that are included in other statutes dates back to World War I.

19:38It really evolved organically, this sort of system where Congress would talk about national emergencies, and then the president started issuing declarations of national emergency. And in fact, the sort of organic nature of it turned out to be a problem, because there was no overarching law that governed the process. And so, you know, there was no time limit on how long an emergency could stay in place. There was no reporting to Congress. This is why Congress in the 1970s enacted the National Emergencies Act. So what the National Emergencies Act did is, first of all, it placed a time limit on how long an emergency declaration could stay in place without being renewed by the president.

20:29The NEA also, as originally enacted, gave Congress the power to terminate an emergency declaration using something that was called a legislative veto. And that's a law that goes into effect with a simple majority of both houses of Congress and without the president's signature. And that was a ready means for Congress to shut down an emergency declaration that was either inappropriate or was lasting too long. But then in 1983, the Supreme Court held that legislative vetoes are unconstitutional. It's the president's duty to take care that the laws are faithfully executed. What we found in the legislative veto was that Congress would tell presidents after they had passed a law that they could or could not do things.

21:16This was Congress getting involved in the president's business. And so today, if Congress wants to terminate an emergency declaration, it basically has to pass a law by a veto-proof supermajority, which is, you know, next to impossible in today's political climate. How far can the president go with emergency powers? Like, what kinds of things could he do? Yeah, well, some of them, if you look at these 150 powers that are at the president's disposal in a national emergency, a lot of them really do seem reasonable just on their face. They seem measured, something that you would want and expect the president to have.

21:58But some of them really do seem like the stuff of authoritarian regimes. There is a law that dates back to 1942 that allows the president to take over or shut down communications facilities. This was last invoked in World War II. I have tonight issued a proclamation that an unlimited national emergency exists and requires the strengthening of our defense to the extreme limit of our national power and authority. Today, it could arguably be used to assert control over U.S.-based Internet traffic. There's another law, and that's the International Emergency Economic Powers Act, that allows the president to freeze the assets of almost anyone, including a U.S.

23:04person, if the president deems it necessary to address a foreign or partially foreign threat. And in fact, the president can also make it illegal for anyone to engage in any financial transactions with that person, including, you know, something as simple as, you know, renting them an apartment or giving them a job or really even selling them groceries. So these are some really alarming authorities in terms of the potential for abuse. You've laid out why granting some of these powers does make sense in times of emergency. Some of them, though, really seem like a lot, just a lot of power. Donald Trump is a highly unusual American president.

23:54Is it possible that Congress made a mistake in assuming that every American president would be like the guy who came before? Yes. Huh. Okay. I'm hired. Thank you. Yeah, that's it. I'm done. That's my answer. Yes. I mean, Congress made a mistake. I mean, to be fair, Congress did give itself a ready means of terminating emergency declarations. And Congress did not foresee that the Supreme Court was going to take that off the table. However, I think it was a mistake to leave the law in place as it was without that safeguard. So I think it is time, past time, for a reckoning for Congress to not only reform the process of national emergency declarations and the termination of those declarations, but also to look at some of these individual powers like the Communications Act.

24:52That's the one that allows the president to take over or shut down communications facilities like the power over domestic transportation. And Congress should put some limits and safeguards on those powers.

25:15Elizabeth Goytin with the Brennan Center. She co-directs the Liberty and National Security Program. Amanda Llewellyn and Hadi Muagdi produced today's show. Jolie Myers edited. Andrea Kristen's daughter and Patrick Boyd are our engineers. And Laura Bullard checks the facts. I'm Noelle King. It's Today Explained.

25:52Thank you.