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.

Comments

[Chumby]

Of course, the Supreme Court has gotten it wrong before in other such cases that should have been easy calls.

Trump is a poopyhead but might win in SCOTUS and if he does then they are poopyheads too. Buy my book.

[SQRLSY]

So WHERE is a link to where we can buy Your PervFected Book, Chumpy-Humpy-Dumpy Simp-Chimp-Chump?

I want to print out the link so that I can snootily blow my boogers upon shit! And then I shall refute shit... By SNOT reading shit, and then BRAGGING about My Pervfected, Mind-Infected, Gun-Grabbing Ignorance!

[JesseAz (Prime Meanster of Sarcasia)]

Excellent summary.

[SCOTUS gave JeffSarc a big sad]

That sounds like what Sarc will say when SCOTUS doesn’t go his way.

[Wizzle Bizzle]

I find the argument about the Alien Enemies Act utterly uncompelling, both morally and legally. Americans would tell you 80/20 what happened under Biden was an invasion. Using the AEA was a novel approach, as Democrats would call it, and I would absolutely bet money that it stands.

Root is almost certainly right about the tariffs, though there's no way the SC is going to strike them all down. So where they draw the line will be interesting and messy.

You know what would simplify all of this? If we had a third branch of government whose job it was to pass legislation. Forget "Is Trump dead?" Is Congress dead? Do they exist? From what I've seen, they popped up once to pass a multi-trillion dollar abomination and then crawled back down into the ooze.

Republicans have free reign to pass whatever they want right now. Instead we're getting EO's that are going to be held up by courts or overturned by the next D in office. Proving once again that while their policies are generally much better, Republicans are incapable of governing at the national level.

[JesseAz (Prime Meanster of Sarcasia)]

No they dont. Senate filibuster and the GOPE ensure that. See Collins and others. Collins is literally working with democrats to force Trump to spend more money.

He cant even get his nominations through because of assholes like Thune.

[Wizzle Bizzle]

If your argument is that they can't govern because they don't have a superty duperty majority, they are by definition unfit to govern. I'd say controlling all three branches of government leaves you fresh out of excuses.

[JasonT20]

Americans would tell you 80/20 what happened under Biden was an invasion.

That's what you think, so it must be true that 80% of Americans think the same thing.

And, what the popular opinion says is what the law says.

[Wizzle Bizzle]

Given that the entire argument will rest upon the definition of invasion, yes, opinion does matter.

[JasonT20]

A politically loaded definition of the term does not matter as much as how it is used and understood when written into laws and the Constitution. People throw the word "treason" around carelessly all the time, but whether 80% or more of Americans would call some person's action "treason" matters for 0% of how courts should interpret the word "treason." That is because the Constitution goes out of its way to define it.

"Invasion" isn't similarly defined explicitly in the Constitution, but how it is used in existing law and legal precedent takes priority over whether X% of people responding to a poll question would call it an invasion.

Most of all, though, the definition of the word needs to be consistent. So using this specific situation to define it could lead to contradictions if an otherwise similar situation occurs in the future, but a majority of Americans would not call it an invasion.

[Wizzle Bizzle]

Well, originalists believe what matters is how a word was intended at the time of the writing. The party that believes in a "living constitution" likes to use originalism when it suits their ends, and whatever definition they like that day when it doesn't.

I would guess given the current makeup of the court, 5 to 7 of them will go the originalist route. And I have to guess 18th-century America would consider 10-20 million people illegally streaming across the border in a couple of years an invasion. But we'll know for sure in a few weeks.

[SCOTUS gave JeffSarc a big sad]

There’s originalism and then there’s wrong.

[JasonT20]

Well, originalists believe what matters is how a word was intended at the time of the writing.

Nah. Originalists gave up on "intent" a long time ago. They've moved to "original meaning" since then. That is less restrictive. With "intent", they would need things written or said about that law or constitutional provision by the people that actually wrote and/or voted on it. With "meaning", they can bring in things from basically anyone alive at the time. Even better, they can bring in things from decades or even longer before and just infer that people at the time the law was passed must have still understood it the same way.

The problem with originalism is the same problem any judicial or legal 'theory' has: nothing prevents judges from using motivated reasoning, cherry picking, or other cognitive biases. What we really need to focus on, when it comes to judges, is not whether they are originalist, living-constitutionalist, textualist, or whatever. We need to focus on whether they have a track record of setting aside their own beliefs when they make decisions, whether they avoid motivated reasoning, and whether they address counter-arguments to their opinions head-on instead of dodging or misrepresenting them. Anyone that can't check off those boxes shouldn't be a judge.

[Purple Martin]

Why yes, speaking of Grey Box's 80/20 issues...

How we got here: Both Kennedy and Trump had been coming under heavy fire from parts of the Make America Healthy Again movement for their perceived lack of action on vaccine policy. But all of that changed with a recent flurry of activity including the downgrading of Covid vaccines, the purge of the CDC and this skeptical-sounding message from Trump. With an announcement on the (supposed) causes of autism also looming, MAHA types feel they’re finally getting what they voted for.

But here’s the problem for Trump. MAHA might be an important voting bloc in his coalition — but it’s also a pretty fringe movement nationwide. Polling consistently shows most Americans overwhelmingly trust vaccines and support vaccine mandates for kids. This poll by the Harvard T.H. Chan School of Public Health last month found 79 percent of Americans in favor.

Irony alert: Trump loves to gloat about Democrats putting themselves on the wrong side of an “80/20 issue.” Is he about to fall into the same trap?

[Wizzle Bizzle]

59% said they won't even get the COVID shot, let alone ask to have it mandated for children. But it's an 80/20 issue for D's? The hell are you talking about?

RFK is insane. Thank the deep blue city Whole Foods shoppers for unleashing his brand of bullshit on the world. And thank Fauci and the rest of the government medical establishment for destroying their credibility so badly that a freak like that could become the preferred alternative.

https://www.kff.org/health-information-trust/poll-finding/kff-tracking-poll-on-health-information-and-trust-covid-19-vaccine-update/

[JasonT20]

You know what would simplify all of this?

I know what would really simplify the problem of illegal immigration. Punishing people and businesses that hire them. And with more than a slap on the wrist. If they can't get jobs, they'll deport themselves. The ones that are criminals that don't want jobs? Well, if ICE doesn't have to waste time rounding up illegals that just want to work, will show up to immigration check ins, and so on, then they'll have more time to go after criminals.

[Wizzle Bizzle]

Not sure what makes you think I don't want the business owners who hire illegals punished. By my reckoning, the only people who don't want to see that happen is the open borders left / LP and the WSJ monied set who want their costs down and their stocks up. Fuck those people, and fuck the parasites and criminals who sneak across the border. They can all go to Alligator Alcatraz together as far as I'm concerned.

[JasonT20]

By my reckoning, the only people who don't want to see that happen is the open borders left / LP and the WSJ monied set who want their costs down and their stocks up.

Well, this is the problem, then. The voting bloc that wants what you want on immigration is getting told by Trump, his allies, and even many other Republicans, what you want to hear on how they are going to be "tough" against illegals. But what matters is whether the problem is actually addressed, right? I don't see any action from the GOP wherever they have power to make laws tougher on businesses that hire illegals or to enforce existing laws that would punish those businesses in the way they are written.

Gov. Ron DeSantis is one of the very few Republicans that even talks about enforcement against businesses and the use of E-Verify. But they published a 37 page plan they gave to the Trump Administration about how they were going to cooperate and help with immigration enforcement. Search the pdf for E-Verify and "no results found" is what you get, nor is there anything in the table of contents that suggests that hiring practices are part of the plan at all.

If you don't like it that the Republican Party will say one thing to court your vote, but then do what benefits their wealthy corporate donors instead, what will you do about that?

[Wizzle Bizzle]

What will I do? Not vote for almost any of them ever. I used to mostly vote LP, but they died with COVID.

You spend an awful lot of time criticizing the R's for not making illegal immigration perfect. If that's an unaffiliated stance and you're holding the party in power accountable, good on you. If that's a "it would be so much better under Democrats" stance, you're living in a dream world. Democrats had their shot, tried the open borders route and they have been decimated as a consequence.

[JasonT20]

Democrats had their shot, tried the open borders route and they have been decimated as a consequence.

They also showed willingness to compromise. They even had what seemed like a deal that could pass Congress until Trump insisted that he'd rather preserve immigration as a campaign issue he could use against Biden. And it worked.

You spend an awful lot of time criticizing the R's for not making illegal immigration perfect.

It's not about being perfect. It is about doing what is the most effective without further eroding what little checks are left on Presidential power. There have been multiple ways that Trump and many Republicans have expanded the power of both the President and state governors at the expense of legislatures and the courts, all in the name of deporting as many "illegals" as they can.

It is "How to Take Power from the People" 101 to find some outgroup that they can claim needs to be dealt with forcefully. Throw in some "tough on crime" seasoning that "requires" military forces that have no training in law enforcement, just in eliminating threats with bullets and bombs, and they have the makings of a feast.

[JasonT20]

What will I do? Not vote for almost any of them ever. I used to mostly vote LP, but they died with COVID.

The LP didn't die with COVID. It was never a contender to win elections. Our system of single-member legislative districts with first-past-the-post winners makes a two party duopoly almost unbreakable. Add in the President always being the de facto head of his party, and separation of powers exists only in theory. The Supreme Court isn't going to uphold that when 5 of the Justices like the results of the President's actions that usurp the power of Congress, the states, or even the people themselves.

If you live in a closed-primary state like I do, pick one of the two and vote in those primaries. If enough libertarians did the same, you might eventually get some Republican primary candidates that you'd like to see win the general election. Maybe, just maybe, they could even win that primary and make a real impression on voters that aren't libertarian and don't even really know what libertarianism is.

One thing that never leads to a political movement having an impact is for the people in that movement to decide it isn't worth it to vote since none of the candidates exactly match their views.

[JasonT20]

There is a really important case not mentioned here. Louisiana v. Callais asks the Supreme Court to decide whether there is going to be anything left of the Voting Rights Act that federal courts will uphold.

The argument being made against drawing "majority minority districts" in this case comes down to: "Racism is over. We fixed it. Now we have to be strictly color-blind, or it would amount to 'reverse discrimination'."

CJ Roberts already gave his stamp of approval to that argument a dozen years ago in Shelby v. Holder, which made Section 3 of the VRA dead letter law, and he had expressed that same sentiment in an even earlier case. He had said, "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." (Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007))

There have been many counter-arguments to this idea, but the simplest one I can think of is this:

All that Roberts and others that hold this view need to do in order to show that race no longer matters in politics is to show us the data that race does not correlate with party affiliation or voting patterns. Show us the data that race does not correlate with economic status. Or educational attainment. Or employment. Or business creation. Or criminal arrests, prosecution, and incarceration. Or being a victim of crime, for that matter. Or geography.

The truth is that human beings still have it wired into our brains that whether someone looks like us is a reliable predictor of whether they can be trusted. Whether that person is one of "us" or one of "them". That isn't overcome just by wishing that it has been. It can't be overcome at all. It can only be understood and countered with conscious effort.

It is especially the case that whether someone looks like us is determined by who was included in "us" as we grew up and became adults. Think of the features of the faces we saw most often among friends, family, neighbors, people at church, in grocery stores, and basically anyone that was trusted as we grew up. Those are the features that we look for to determine who is one of "us". Two eyes, a nose below and in between the eyes with two nostrils, two ears, a mouth below the nose...seems like enough to see it as a human face we can trust. Unless, that is, we only saw people with a narrow range of skin tones similar to ours, a certain shape to their eyes or nose similar to ours, a certain color and texture of hair similar to ours among those that earned our trust.

Add in the language that they speak, the dialect of that language and accent of their speech, the symbols they display, and the rituals and phrases that they use that identify them as part of our group, and we have a fairly complete subconscious construction of who is in and who is out of our circle of trust.

So, no, Chief Justice Roberts, we cannot stop discrimination by race, or anything else for that matter, just by acting as if those differences don't matter. No matter how much we might wish that we, as a society, have evolved past our prejudices, they are still there. They control us just as surely when we try and ignore them as they do when we consciously choose to be prejudiced.

[Liberty_Belle]

+1 ^^

Humans will stop being racist to each other when they find something else to be biased/racist against ... like filthy alien space communists.

" Me against my brother. My brother and I against my cousin. The three of us against the world. "

[SQRLSY]

Have you been studying sociobiology, AKA evolutionary psychology? Because you just NAILED it! The fancy geek-words for what you just summarized is "kin altruism"... Favoring those whose genes you share.

If you have time to kill, check out these 2 web pages... Which are largely based on the same things...

“Do-gooder derogation” (look it up) is a socio-biologically programmed instinct. SOME of us are ethically advanced enough to overcome it, using benevolence and free will! For details, see http://www.churchofsqrls.com/Do_Gooders_Bad/ and http://www.churchofsqrls.com/Jesus_Validated/ .

[Uncle Jay]

" No matter how much we might wish that we, as a society, have evolved past our prejudices, they are still there."

Well said.
Human nature combined with your parents' opinions decide what you say and think more than one knows.
Human nature will never change despite the rantings of the lunatic left and the righteous right.
America, indeed the entire world, will never change because human nature will never change, and it's folly to believe otherwise.

[Purple Martin]

So Jay, do you belong to the Church of Solipsism, or of Nihilism? Because what you are relating is a deep theocratic faith in the Fallen Nature of Man, based only on your tiny, fleeting moment of consciousness in a vast universe.

I don't believe history supports your view but instead demonstrates that over centuries, over millennia, human society slowly matures, improves, and ultimately, advances. But such progress comes with considerable backsliding characterized by a bumpy two-steps-forward-one-step-back.

And America made a choice to step backward—a choice against American greatness. A choice for smallness and pettiness. A choice against seriousness, against responsibility. A choice against a role of which we should be proud. American recovery from authoritarian, autocratic, Trumpist MAGAism—if it happens at all—will take decades.

Whether we recover or not, history will compare the 21st century American Trump Interregnum to the 20th century Chinese cultural revolution known as Mao’s Great Leap Forward—two of the worst periods of a major nation’s intentionally-pursued reversal of societal progress—of purposeful backsliding—in human history.

I do think, based on my own tiny, fleeting moment of consciousness in a vast universe, whether it takes a decades or centuries, "America and the entire world" will continue to change, to progress.

[Uncle Jay]

Really?
Has the world really improved since the humans fouled this earth?
I think not because human nature has not changed.
I'm willing to wager there have been more wars, oppression, and tyranny after WWII in the 20th century than before.
Take a look around.
The PRC.
Cuba.
Venezuela.
Drug trafficking.
Human trafficking.
Crime running rampant in many of our largest metropolitan areas.
Drug abuse.
Illiteracy or near-illiteracy thanks to a bunch of well-meaning but stupid do-gooders.
I see oppression, terror, authoritarian or totalitarian governments either staying in power or on the rise.
Humans make history, and until someone can change human nature and all our dark thoughts, human nature will still entertain and engage in dark deeds.
As a wise person once told me, show me an optimist, and I'll show you a sucker.

[Purple Martin]

So Church of Solipsism it is. If it doesn't exist in your infinitesimally tiny slice of existence, it's meaningless.

Do a little research on the conditions of humanity 1000 years ago. Compare that to, say 1946-2024. Then check back with me in another 1000 years.

[SQRLSY]

Agreed, Purple Martin!!! Slavery as a formal institution (ownership of one person by another, supported by law) is long gone. Read Stephen Pinker's books about the well-documented decrease in violence (private and public, AKA war, both) as historical time has passed. Enough said. Kudos!

[Uncle Jay]

"As I've previously argued, overruling Trump's tariffs should be an easy call for the Supreme Court..."

Get real.
How many times has the SCOTUS made the wrong call throughout the history of the US?
Too many to count.

[MWAocdoc]

"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."

I'm not holding my breath on this one. The Supreme Court has intentionally "gotten it wrong" - for ideological reasons or out of a deficient sense of responsibility to uphold and defend the Constitution - so often, so many times over the decades that "getting it right" would, quite frankly, be a big surprise to me.