Noah Feldman: The Supreme Court can't keep dodging the White House

The Supreme Court has been trying to avoid directly confronting Donald Trump’s blatant challenges to established legal norms. But two cases destined to reach the justices are going to make that very difficult. Both instances involve signature Trump policies that were ruled unlawful by federal appeals courts: his unilateral tariffs, found to exceed his presidential authority, and his use of the Alien Enemies Act to deport alleged Venezuelan gang members.

In each case, the Supreme Court will have to choose between angering Trump by striking down his actions or issuing decisions that effectively endorse his distortions of legal reality. For the conservative majority, neither option is especially appealing.

Let’s start with the tariffs. During both his terms, Trump has behaved as if he had the unchecked power to impose tariffs on any country at any time. As we have watched the economic consequences — both foreign and domestic — unfold, his behavior has come to seem somehow normal. It isn’t. No president in U.S. history has ever tried to impose tariffs in such a sweeping, unilateral way. And there is a reason for that: tariffs are taxes. The Constitution places the power to tax squarely in the hands of Congress, not the president.

Trump’s only legal justification for the authority to impose such tariffs is the International Emergency Economic Powers Act (IEEPA). But on its face, the IEEPA never explicitly says the president can do this. What it does say is that, when the president declares a national emergency based on an “unusual and extraordinary threat … to the national security, foreign policy, or economy of the United States,” the president may, among other things, “regulate” the “importation” of property.

The Trump administration’s legal argument is that regulating importation must include subjecting imports to tariffs. The U.S. Court of Appeals for the Federal Circuit held otherwise.

In its ruling, the appeals court did not question the declaration of an emergency because the statute gives the power of declaration to the president, and there is a long-standing tradition of deferring to such declarations when Congress does so.

Rather, the court reasoned that “Congress did not use the term ‘tariff’ or any of its synonyms, like ‘duty’ or ‘tax.’” When Congress delegates the tariff power to the president, the court went on, it has always “used clear and precise terms” to do so.

Under ordinary circumstances, this textual argument might be enough to convince some of the Supreme Court’s conservative members that Trump’s actions have gone too far.

What’s more, under the leadership of Chief Justice John Roberts, the conservative majority has for the last several years taken the view that if Congress is delegating a big, unprecedented power to the executive branch, it must do so clearly, not ambiguously. Applying the “major questions doctrine” to this case should also yield the result that Trump has overstepped.

In addition, some of the most conservative justices, including Justice Neil Gorsuch, are worried about Congress delegating powers to the executive without sufficient guidance — a practice they believe undermines the separation of powers. This concern, too, should in principle push the court to find that Trump’s tariffs are illegal.

Yet for the Supreme Court to strike down the tariffs would mean rejecting a president’s primary policy initiative — something the court hasn’t done since the early New Deal. So, the court’s conservatives might go the other way. They could simply say that the words “regulating importation” do include imposing tariffs. In support, they could cite a precedent from the 1970s, in which Richard Nixon imposed a tariff based on the predecessor statute to the IEEPA, which an appeals court upheld. The result would be at odds with conservatives’ concerns about too much power being delegated to the executive — but it would allow them to avoid a direct confrontation with Trump.

The Alien Enemies Act case is headed for the Supreme Court because a panel of the usually conservative U.S. Court of Appeals for the Fifth Circuit, in a 2-1 ruling, refused to accept the Trump administration’s assertions that the Tren de Aragua street gang and Venezuela were engaged in a predatory incursion into the U.S. — the necessary predicate for the deportations.

Factually, the panel’s outcome is clearly correct. There is no invasion or incursion, and to allow the administration to claim otherwise would require a court to bury its head in the sand and pretend it has no idea what’s happening in the real world.

The dissenting opinion, written by a Trump appointee, roughly illustrates what the Supreme Court’s conservative majority would have to do to reach the opposite conclusion. The Fifth Circuit judge wrote that “the President’s declaration of an invasion, insurrection, or incursion is conclusive. Final.” In other words, whatever Trump says goes. If he declares that the U.S. is being invaded by Martians, then — legally speaking— it is.

The conservative majority could, to be sure, embrace this reasoning, give Trump a victory, and again, avoid a confrontation. In general, courts try to avoid making judgments about foreign policy. That’s a sound approach — when the president shows at least a modicum of respect for reality, and Congress has the will to act when presidential actions cease to reflect that reality.

The justices, like everyone else in the country, know that Trump prefers to construct his own version of reality. In the Alien Enemies Act case, they will have to choose either to bless Trump’s counter-to-reality assertions or accept the necessity of telling him that he can’t declare black is white and get away with it.

The upshot is that the court’s conservative majority will have to show its true colors in both cases. The outcomes will have fundamental implications for the evolution of the rule of law in the U.S.

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This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."