2 Trump Cases To Watch as the Supreme Court Returns From Summer Break

Plus: A momentous date in the life of Frederick Douglass

The Trump administration lost two major cases before two different federal appellate courts in the last week, each one involving a separate unilateral executive action that was ruled illegal. With the U.S. Supreme Court readying to return early next month from its summer break, both cases are worth a close watch, as either one of them could easily land on the Court's docket for oral arguments and judgment sometime in the upcoming 2025–26 term.

So let's consider each case in turn.

Last Friday, August 29, the U.S. Court of Appeals for the Federal Circuit held that President Donald Trump's imposition of "tariffs of unlimited duration on nearly all goods from nearly every country in the world" was unlawful because Trump's purported authority for this sweeping action, the International Emergency Economic Powers Act (IEEPA), did not authorize the president to do any such thing.

The "IEEPA's grant of presidential authority to 'regulate' imports does not authorize the tariffs imposed by the Executive Orders," declared the court's 7–4 majority. To hold otherwise, the court stated, would be to countenance an executive overreach that violated federal law by exceeding "the authority delegated to the President by IEEPA."

As I've previously argued, overruling Trump's tariffs should be an easy call for the Supreme Court "because Trump has unlawfully exercised power that the Constitution placed in the hands of Congress, not in the hands of the president." Furthermore, "Trump's use of the IEEPA to fundamentally remake the American economy cannot be reconciled with any law passed by Congress."

Of course, the Supreme Court has gotten it wrong before in other such cases that should have been easy calls. Perhaps we'll find out soon whether this Court has what it takes to get this one right.

Now let's turn to the second big case that may soon be headed the Supreme Court's way.

On September 2, the U.S. Court of Appeals for the 5th Circuit rejected Trump's claim that the 1798 Alien Enemies Act (AEA) permits him to summarily deport alleged members of a Venezuelan street gang. "Applying our obligation to interpret the AEA," the 5th Circuit said, "we conclude that the findings do not support that an invasion or a predatory incursion has occurred."

According to the text of the AEA, "whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government," the president may then, and only then, direct the "removal" of "all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized."

However, as the 5th Circuit correctly recognized, no such conditions currently exist to justify Trump's unilateral actions. As I've previously noted, "there is no 'declared war' between the United States and Venezuela, and there is no 'invasion or predatory incursion' of the U.S. by 'any foreign nation or government.' The gang is not a foreign state, and the gang's alleged crimes, heinous as they may be, do not qualify as acts of war by a foreign state."

Ruling against Trump's invocation of the AEA should thus also be an easy call for the Supreme Court. But let the dissenting opinion of 5th Circuit Judge Andrew Oldham serve as a cautionary tale against any unbridled optimism in this matter.

According to Oldham's dissent, the choice to invoke the Alien Enemies Act is the president's choice alone, and it should never be subjected to "the second-guessing powers of unelected federal judges." In fact, Oldham declared, even if Trump did act illegally, the courts still have no business overruling him in a case like this one. "Just because the Executive might violate the law," Oldham wrote, "does not mean the courts can do anything about it."

Unfortunately, that sort of extreme judicial deference toward the president has been warmly embraced by the Supreme Court before, especially when the legal dispute touched on foreign affairs. So I would not be entirely shocked if some version of Oldham's unfortunate dissent worked its way into the opinions of one or more justices.

In Other News

Yesterday marked a momentous date in American history, and I would be remiss if I failed to at least briefly acknowledge it here today.

"On Monday, the third day of September, 1838, in accordance with my resolution, I bade farewell to the city of Baltimore, and to that slavery which had been my abhorrence from childhood."

So wrote the great American hero Frederick Douglass in remembrance of the fateful day—187 years ago yesterday—in which he made good his escape from bondage. It's always a good time to honor and remember Douglass and his legacy of liberty. But this week's anniversary gives us an extra reason to do so.