Washington Merry-Go-Round

IMMEDIATE RELEASE 6 September 2025
WASHINGTON MERRY-GO-ROUND
Today’s Events in Historical Perspective
America’s Longest-Running Column, Founded 1932
A clear and present danger
By Douglas Cohn and Eleanor Clift         
 
WASHINGTON – The United States is facing the most consequential Supreme Court (SCOTUS) decision in the nation’s history, and should it fail in its duty, the U.S. form of government cherished and defended by citizens since the Constitution was drafted in 1787 will have come to an end.
The case: White House lawyers have asked SCOTUS to fast-track its ruling on the U.S. Court of Appeals decision that denies President Trump the power to declare emergencies at will. Specifically, the lower court says he does not have the sole power to invoke emergencies and impose import tariffs on whichever countries he chooses, but the critical issue is not about tariffs; it is about the critically important issue of defining one word: emergency.
Trump is focusing on tariffs. The government continues to collect billions in revenue, which, if the ruling does not go Trump’s way, would mean returning all that money. He has said that it would put the U.S. on the “brink of economic disaster,” and America would become a “third world country.”
A SCOTUS ruling affirming the lower court’s decision would disrupt his plans to reshape the economic world order, while a ruling overturning the lower court’s decision would endorse an extraordinary power grab that legitimizes the Unitary Executive Theory, a vision earlier advanced by former President Richard Nixon and now fully embraced by Trump.
“I can do anything I want,” Trump asserted in a marathon Cabinet meeting last week. “Because I’m the president,” he added.
Forget checks and balances and the three independent and coequal branches of government if SCOTUS does not step in and offer some restraint.
The case they will be fast-tracking is based on Trump’s assertion of the 1977 International Economic Emergencies Act (IEEA), signed into law by President Jimmy Carter. Trump cites the “long and persistent trade imbalance” as an emergency that justifies taking it upon himself without the consent of Congress to impose import tariffs on whichever goods he chooses, overriding Article I, Section 8 of the Constitution: “The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises” and “To regulate Commerce with foreign nations…”
This is not a close call by any standard. There is no emergency.
But we are not dealing with a normal Court. Three of the nine justices were appointed by Trump. Chief Justice John Roberts, appointed by President George W. Bush, is most concerned with preserving the appearance of a fair standard, and he occasionally joins the losing side of the three Democrat-appointed justices, but the outcome is usually the same, a 5-4 vote instead of a 6-3 vote: another win for the conservative bloc.
For Court-watchers, this is big casino, and here are the odds we assess:
1)    SCOTUS overrules the lower court and sides with Trump. Even for this Court, a Court that seeks to align itself with Trump, this is too blatant. We put the odds at 50/50. They should be 5/95.
2)    SCOTUS does not take the case and lets the lower court ruling stand. This would be seen as an abdication of power by SCOTUS. We put the win/lose odds at 20/80.
3)    SCOTUS says the prolonged trade deficit that Trump cites is not an emergency and agrees with the lower court. If this Supreme Court were a normal court in normal times, the odds would be 95 percent, but only 50/50 for this court.
4)    SCOTUS could say the obvious, that Congress has tariff powers, and declines to rule on the more complicated issue of emergency powers or what constitutes an emergency. That would be ducking the real issue, so we put the odds at 20/80.
Which brings us to the elephant in the room, and that is, what constitutes an emergency? The 1976 National Emergencies Act, signed by President Gerald Ford, which formed the basis for the 1977 IEEA, does not spell it out, thereby leaving myriad room for interpretation.
This needs to be defined, and the Supreme Court now has the obligation and opportunity to do so with a statement as simple as: “An emergency is any event that poses a clear and present danger to the nation.”
The future of the nation is now in the hands of an uncertain SCOTUS.
 
See Eleanor Clift’s book Selecting a President, and Douglas Cohn’s latest books The President’s First Year: The Only School for Presidents Is the Presidency and World War 4: Nine Scenarios (endorsed by seven flag officers).
Twitter:  @douglas_cohn
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END WASHINGTON MERRY-GO-ROUND