Trump tariffs and trade deals might be good for America. On the face of the law, however, Trump’s tariffs appear illegal just like Obamacare.
ChatGPT says:
Chief Justice Roberts’ approach in NFIB v. Sebelius (2012) shows how the Court sometimes upholds a law even if the majority of justices are skeptical of it under their preferred doctrinal reading. Roberts rejected the Commerce Clause justification for the Affordable Care Act’s individual mandate but ultimately upheld it as a valid exercise of Congress’s taxing power. That move was widely seen as institutional — preserving the Court’s legitimacy in the face of a landmark statute.
If the Court takes up the legality of Trump’s tariffs, a similar dynamic could matter. Tariff authority comes from statutes like Section 232 of the Trade Expansion Act and Section 301 of the Trade Act of 1974. Critics argue Trump stretched those provisions beyond their intended scope. The Court could technically find those actions outside the statutory grant, but it might also hesitate to strike them down because trade and national security are areas where courts traditionally defer heavily to the executive branch. Just as Roberts found a legal “hook” (the taxing power) to avoid dismantling Obamacare, the Court could look for a statutory or constitutional basis to uphold tariffs even if they strain the plain reading — in part to avoid inserting the judiciary into politically and economically explosive trade disputes.
When an American president declares he has emergency powers, he usually gets his way.
Historically, when a president invokes “emergency powers,” courts and Congress have usually given a very wide berth. There are a few reasons:
Statutory backdrop: Congress has passed broad laws (like the National Emergencies Act, International Emergency Economic Powers Act, and the Defense Production Act) that hand presidents sweeping discretion once an “emergency” is declared. The statutory text often leaves little room for courts to second-guess.
Judicial deference: Courts tend to defer to the executive on national security, foreign policy, and economic sanctions. Even when they’re skeptical, they usually stop short of drawing bright lines that limit the president.
Institutional incentives: Both courts and Congress often avoid being seen as obstructing the president during a “crisis,” because if things go badly, they don’t want the blame.
The few big exceptions are when a president clearly steps outside statutory or constitutional authority—think Youngstown Sheet & Tube v. Sawyer (1952), where the Supreme Court blocked Truman’s steel mill seizure during the Korean War. But that’s the outlier. The norm is that once a president says “emergency,” unless it’s egregiously outside the law, the move sticks.
In his 1948 book, Constitutional Dictatorship: Crisis Government in the Modern Democracies, Clinton Rossiter wrote:
* In Roosevelt the voters had chosen the most crisis-minded public figure in American history, a man who thrived on crises, emergencies, dangers, perils, and panics. His long tenure of office was a continuous emergency, and not just for the Republicans. Nor did he fail to admit or take advantage of the fact. “I love a good fight.” Like Murat he rode ever toward the sound of the guns. He was preeminently “a man proposing, not prudence, but the deliberate assumption of risks in the hope of great gains.” The resort to extraordinary power in extraordinary circumstances was instinct for this extraordinary man, and his character is not to be overlooked in any estimate of the crisis government of 1933.
* The President’s sources of emergency authority were, of course, his own broad reading of his constitutional war powers and the immense delegations of discretionary power which he already enjoyed or which Congress gave him for the duration of the crisis.
* The proclamations of emergency of 1939 and 1941 were in keeping with the best conceptions of the President’s constitutional authority and even more in keeping with the love of crisis which Mr. Roosevelt was never bashful in exhibiting. The idea of a “limited” national emergency as declared in September 1939 was the President’s own; it is completely unrecognized by statute or constitutional practice. Under this proclamation he was able to make use of various emergency statutes, particularly those allowing him to expand the peacetime army and navy, without getting the public too excited and inviting the accusation that he was trying to get the nation into war.
ChatGPT says:
Yes — those Rossiter passages line up almost eerily with Trump’s style.
Crisis orientation: Like FDR, Trump thrives on crisis talk. Rossiter’s point that Roosevelt loved emergencies because they gave him room to act could just as easily describe Trump. Whether it was immigration, trade, or COVID, Trump framed situations as existential and used the “emergency” lens to justify unilateral action.
Broad readings of authority: Roosevelt stretched his war powers and leaned on congressional delegations. Trump did the same — think of his border wall funding under a “national emergency,” or his tariffs under statutes meant for narrow trade or security threats. Both presidents pushed beyond the plain text and relied on vague statutes as springboards.
Inventing categories of emergency: Rossiter notes FDR’s “limited emergency” in 1939 had no basis in law but let him act without alarming the public. Trump did something similar when he blended economic and security emergencies, treating trade deficits or immigration surges as if they were wartime crises.
Personality matters: Rossiter stresses that FDR’s character — crisis-loving, risk-embracing — shaped the government’s resort to extraordinary powers. That’s true for Trump too: he wasn’t shy about saying he had “absolute” power, and he treated every dispute as a fight to be escalated.
The key difference: Roosevelt had both broad congressional backing and a long wartime context that made his emergency footing sustainable. Trump leaned more on unilateral assertions, with less institutional support — which made his use of emergency powers more legally vulnerable but still often effective in practice, because courts and Congress hesitate to check presidents once “emergency” is invoked.
