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--:-- Noel King: Plenty of people have been caught up in President Trump's emergency declarations. The most high-profile are undocumented immigrants. But there's also Victor Owen Schwartz, who imports wine. Georgina Terry, who sells bikes for independent women. Why pay me to fix a flat tire when you can figure it out on your own? David Levi, who makes kicky little musical toys like a banana keyboard. And Dan Pastore, who sells fishing gear. This week, they're all in court suing President Trump because his tariffs hurt their businesses. Trump says he can unilaterally levy tariffs because he has declared an emergency. The court is going to decide whether that's legal.
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--:-- Noel King: It is possibly the biggest self-inflicted economic blow that the United States has done to itself in my lifetime. And the courts could just make that all go away. So, you know, that's exciting. That's ahead on Today Explained.
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--:-- Noel King: Support for Today Explained comes from the FIFA World Cup, of all things. The FIFA World Cup 26 is coming to North America next summer. It is the ultimate celebration of sports and culture. You can get closer to the beautiful game with a hospitality package, closer to the action, the best seats, the best suites, closer to match day and that world-class food and that world-class entertainment, closer to the experience of a lifetime. Book a hospitality package at fifaworldcup.com slash hospitality.
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--:-- Noel King: Support for this show comes from strawberry.me. Be honest. Are you happy with your job? Or are you stuck in one you've outgrown? Or never wanted in the first place? Sure, you can probably list the reasons for staying. But are they actually just excuses for not leaving? Let a career coach from strawberry.me help you get unstuck. Discover the benefits of having a dedicated career coach in your corner. Go to strawberry.me slash unstuck to claim a special offer.
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--:-- Noel King: This is Today Explained. Ian Millhiser covers the Supreme Court for Vox, and he has written two books about the Supremes. All right, Ian, so this week there is a small court hearing a very big case. Are President Trump's tariffs legal? Tell us what's going on.
--:-- Ian Millhiser: Yeah. So there is this court called the U.S. Court of International Trade, which it is a federal court that hears disputes arising out of America's trade laws. And the biggest trade story, I mean, maybe of the last 30 or 40 years is Donald Trump's tariffs and whether the president has the power to essentially impose enormous new taxes on imports that are expected to drive up the price of goods for every American.
--:-- Noel King: I listened to the oral argument yesterday in the trade court. And while I'm not certain what's going to happen, what I heard is three judges that sounded really skeptical of the tariffs. And so I think it is more likely than not that we're going to get a court order pretty soon, which could make the tariffs go away.
--:-- Ian Millhiser: So the case is called vos selections versus trump um vos selections is just a liquor and importer um they they import you know italian wines and you know various bottles from other countries and so obviously whenever they bring a bottle into the country they have to pay the tariff and that's not good for their business and then there are four or five other businesses who've signed on with plaintiffs and it's a similar story with all of them like one's like a bicycling company.
--:-- Noel King: One makes like electronic products and they have to import some of their components. And so they're paying tariffs on these components that they're getting overseas and they don't want to pay that tax. So they're just in court saying, look, these taxes are illegal. We shouldn't have to pay.
--:-- Ian Millhiser: Our plaintiffs have no certainty when it comes to what the rates are going to be. It's very difficult. And that's, of course, one of the reasons that one person, the president, shouldn't have this unchecked tariff power is that without any kind of restrictions, it can be changed on a whim.
--:-- Noel King: So the statute, the federal law that Trump relied on when he put the tariffs in place, it's called the International Emergency Economic Powers Act. And the key word there is emergency. The statute says that Trump is allowed, does have sweeping power to regulate the importing of foreign goods, but only when there is, and this is the language that the statute uses, an unusual or extraordinary threat to which a national emergency has been declared.
--:-- Ian Millhiser: Much of the argument yesterday focused on what those words unusual and extraordinary threat is. The House committee report talks about how they expected the emergencies to be rare, brief, and not of a normal ongoing circumstance. Under those three things, the trade deficit doesn't meet any single one of those.
--:-- Noel King: Trump claims that the reason we need these tariffs is because the United States has trade deficits. It buys more stuff from many countries than it sells. And we've had trade deficits for decades. Like trade deficits aren't really an unusual thing. I have a trade deficit with the grocery store. I buy more stuff from them than, you know, than I sell.
--:-- Ian Millhiser: So the argument is pretty straightforward here. It's just like trade deficits are ordinary. Like even if you think that trade deficits are bad, they're not unusual or extraordinary. And so the argument is that this statute, which only lets Trump respond to unusual and extraordinary threats, doesn't apply in this case.
--:-- Noel King: I'm asking this court to be an umpire. I'm not and and call a strike. And you're asking me, well, where's the strike zone? Is it at the knees or slightly below the knees? And I'm saying it's a wild pitch and it's on the other side of the batter and hit the backstop. So we don't need to debate the difference between the strike zone at the knees or slightly below.
--:-- Ian Millhiser: So we don't need to debate the difference between the strike zone at the knees or slightly below. And what is the government's defense of the tariffs, as you heard it yesterday?
--:-- Noel King: So the government's primary response to this argument is essentially to tell the courts, you can't touch us, ha ha ha. I mean, you know, they put that in a legalistic way. They claim that the question of whether such a threat exists is what called a political question And political question is legalese for the courts get to decide it You know it has to be decided by the other two branches of government
--:-- Ian Millhiser: And so they're primarily just saying, look, courts, doesn't matter if this is an unusual threat or not. You don't get to make that decision. Donald Trump gets to make that decision. The president gets to make that decision.
--:-- Noel King: But since no one has yet cited a dictionary definition for unusual or extraordinary, I thought I would offer one. Unusual just means not usual. That's the Merriam-Webster dictionary definition, and extraordinary is going beyond what is unusual, regular, or customary. That fits with the state of affairs that this executive order describes.
--:-- Ian Millhiser: So we have three judges, as I understand it, bipartisan. This is not a court that typically gets a ton of attention, right? This is it's not the Supremes. Right. What vibe were you getting from them yesterday? Do you get the sense that they seem to favor either the government's argument or the argument that the plaintiffs are making?
--:-- Noel King: So broadly speaking, there's three ways this could turn out. One, they could just uphold the tariffs and then the tariffs stick around, assuming that a higher court doesn't step in. The second is that they just think this law that Trump relied on doesn't allow these particular tariffs to exist. That would be a very narrow opinion.
--:-- Ian Millhiser: And I don't know that in a decision that says that would necessarily get rid of the tariffs for very long, because there's other statutes, the Trade Act of 1974, which also potentially allow Trump to impose tariffs. It would just take longer for him to do it under the Trade Act.
--:-- Noel King: So if they strike this down on statutory grounds, we could be back having this argument a few months from now. And then the third possibility is during the Obama and Biden administrations, a bunch of you know, Republican judges and justices came up with very aggressive theories to limit the power of the president because they didn't want Obama and Biden doing things like canceling student loans.
--:-- Ian Millhiser: And these judges could potentially take these doctrines that were created to go after Joe Biden and just apply them to Donald Trump. And if that happens, it could mean that the tariffs are gone for good.
--:-- Noel King: So I don't say this with any degree of certainty, but I'm like 60 to 70 percent sure that they're going to strike the tariff staff. They did have, you know, lots of questions for both sides. In response to Trump's lawyer, I mean, they did not buy this argument that that's a political question.
--:-- Ian Millhiser: The court shouldn't be involved at all. You know, there was a lot of mockery of that question. We have a problem with peanut butter. We have a national shortage of peanut butter. And so can the judge, can the president declare an extraordinary emergency? Well, I think it probably depends on a number. You like peanut butter? There's no limit.
--:-- Noel King: They brought up constitutional and quasi-constitutional arguments like this thing called the major questions doctrine, which essentially says that when the president tries to use it that's too big, that the court should be very skeptical of that.
--:-- Ian Millhiser: Trump argued that the major questions doctrine doesn't apply to him, and the judges didn't seem to buy that at all. So, you know, it's not like they all stood up and said, verily, we three judges intend to strike down the tariffs, and you can, you know, reporters can listen to us say this and know with certainty what's going to happen.
--:-- Noel King: But it sounded more like the sort of hearing that the government loses in, that it sounded like the kind of hearing where the government wins. That said, I would be stunned if this doesn't go to the Supreme Court.
--:-- Ian Millhiser: The U.S. Court of International Trade, like you know these are experts on trade, I you know I was impressed by the professionalism of the judges that I heard um hearing the case uh yesterday but like these are obscure officials.
--:-- Noel King: Like, we generally don't want rando trade policy wonks to be deciding the most important political questions for the United States. You know, generally, that's a matter that we want the big hitters to be brought in. And in this case, the big hitters are, unfortunately, the Supreme Court justices.
--:-- Ian Millhiser: So I'm, you know, I'm fairly confident that this is going to go up to the Supreme Court eventually.
--:-- Noel King: Absolutely. Ian, in the second half of the show, we're going to be talking about the frequency with which President Trump has said he must do something because it's an emergency. He's got to do tariffs because it's an emergency. Some of the moves on immigration because it's an emergency. If this court rebukes the president on tariffs and says, hey, you called it an emergency, but we don't think it is, does that mean that we might be looking at a near future in which courts are far more skeptical of the president using it's an emergency as an excuse to do what he wants?
--:-- Ian Millhiser: Yeah. So this statute is a little different than a lot of the other emergency statutes. This one, and I'm just going to again, I'm going to read it again. It says that the powers that Trump is invoking here can only be used to, quote, deal with an unusual and extraordinary threat with respect to which a national emergency has been declared.
--:-- Noel King: Now, I read that and I hear there are two things that needs to happen. One is that the president needs to declare an emergency. He's done that. I don't think the courts can review that, and that's fine. But the second thing is that the statute also says that whatever he's reacting to actually has to be an unusual and extraordinary threat.
--:-- Ian Millhiser: So, I mean, I don't know what the courts are going to do here. Maybe they're going to start, you know, second-guessing every emergency declaration that a president makes. And I don't really think that would be a good idea because a lot of the time these statutes, again, they aren't really about like, is this something that you and I would call an emergency? They're about, is this so important that it warrants the president's personal attention?
--:-- Noel King: And I don't know that we want courts getting involved in making those calls. But in this case, this statute says two things has to happen. It's not just that the president has to declare an emergency, it's that there has to actually be an extraordinary and unusual threat.
--:-- Ian Millhiser: And so I'm hoping the courts are going to say, look, we can just set aside the question of whether Trump was right to declare an emergency and focus on whether that unusual and extraordinary threat exists.
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--:-- Noel King: Support for today's show comes from Adio. What is Adio? Adio Adio is an AI-native customer relationship management system built specifically for the next era of companies. They say it's extremely powerful, adapts to your unique data structures and scales with any business model.
--:-- Ian Millhiser: According to Adio, Adio takes less than a minute to set up, and within seconds you will have your email and calendars synced. You'll see all your relationships in a fully-fledged platform, they say, all enriched with that actionable data. And they say you can build AI-powered automations and use its research agent to tackle some of your most complex processes to seize so that you can focus on what matters, building your company.
--:-- Noel King: You can join industry leaders such as Flatfile, Replicate, Modal, and so much more. You can go to adio.com slash todayexplained to get 15% off your first year.
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--:-- Noel King: Support for this show comes from Macy's. It's almost fall, and that means it's time to cycle your wardrobe to the cold setting. Because while everyone loves a breezy summer outfit, let's be real. Layering is even more fun.
--:-- Ian Millhiser: That's why Macy's Fall Fashion Guide has everything you need to piece together the perfect look for you. It's your one-stop shop for fall's latest trends and must-haves. Curated by their experts. Add a statement shoe to your collection, like the calf hair loafers from Steve Madden, or tap into your romantic side with flowy dresses from Cece and sheer pieces from INC.
--:-- Noel King: You can even throw in some textural layers for contrast, like a faux fur bomber jacket from Karl Lagerfeld Paris. Whether your old favorite sweater or coat is on its last threads, or you're just craving a new vibe to switch things up, Macy's has got you covered this season.
--:-- Ian Millhiser: Find the perfect layering pieces for you by exploring the Macy's Fall Fashion Style Guide. Shop in-store or online at macy's.com.
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--:-- Noel King: Support for Today Explained comes from Upwork. If you run a business, you know that scaling your business requires the right expertise at the right time.
--:-- Ian Millhiser: I sometimes wonder how many of you are running businesses out there. I would love to know. Please email me, noelle at king.com. With Upwork, you can find specialized freelancers in IT, web development, AI, design, admin, support, marketing, and more experts who they say are ready to help you take your business to the next level.
--:-- Noel King: With more than two decades of experience, Upwork has a simple and ambitious goal to pioneer a better way of working. Companies at every stage turn to Upwork to get things done and find more flexibility in the way they staff key projects and initiatives by accessing a global marketplace full of top talent.
--:-- Ian Millhiser: Plus, Upwork makes posting your job easy with no cost to join. You can register, browse, freelancer profiles, get help drafting a job post or even book a consultation. You can visit Upwork.com right now and post your job for free.
--:-- Noel King: That is Upwork.com to post your job for free and connect with top talents ready to help your business grow. That's U-P-W-O-R-K dot com, Upwork dot com.
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--:-- Noel King: You're listening to Today Explained. I'm Noelle King. Elizabeth Goytin is with the Brennan Center, where she co-directs the Liberty and National Security Program. Elizabeth is an expert, maybe even the expert, on presidential emergency powers. And she says President Trump has sure been using his.
--:-- Elizabeth Goytin: President Trump declared eight national emergencies in his first 100 days in office. That's a rate that far surpasses any previous president, including Trump himself, during his first term in office.
--:-- Noel King: These emergency declarations include a declaration of emergency at the southern border. All illegal entry will immediately be halted and we will begin the process of returning millions and millions of criminal aliens back to the places from which they came.
--:-- Elizabeth Goytin: There's a declaration of an energy emergency. We will drill, baby, drill. A declaration of emergency in order to impose sanctions on personnel at the International Criminal Court. As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority.
--:-- Noel King: There is an emergency declaration to impose sanctions on drug cartels that have been designated as terrorist groups. They're killing our people. They're killing 250,000, 300,000 American people a year. Not 100, like, has been reported for 15 years.
--:-- Elizabeth Goytin: And then there are four emergency declarations that were issued to impose tariffs on, respectively, China, Mexico, Canada, and then pretty much the whole world.
--:-- Noel King: Eight emergency declarations in 100 days. So eight emergencies sounds like a lot, especially because for most Americans day to day, I don't think we feel like we're living in a time of eight distinct emergencies that we weren't living in, you know, six months ago.
--:-- Elizabeth Goytin: Why does the president do this? A national emergency declaration is an extraordinarily powerful thing. It unlocks enhanced powers that are contained in 150 different provisions of law, all of which say something like in a national emergency, the president can do X or in a national emergency, the president doesn't have to do Y.
--:-- Noel King: So these are powers that allow the president to take actions that go beyond what Congress has authorized in non-emergency situations. And in some cases, they allow him to take actions that Congress has expressly prohibited in non-emergency situations.
--:-- Elizabeth Goytin: And this can be a very tempting tool in order to implement policy in situations where there's not sufficient support from Congress or where Congress has actually prohibited that policy.
--:-- Noel King: I can certainly see that And President Trump sometimes behaves as if the emergency powers were you know granted from from upon high but by God But actually what you saying is they come from Congress This is Congress saying we will allow you to have additional power in times of emergency.
--:-- Elizabeth Goytin: When and why did Congress initially do this? I mean, Congress has been providing these powers to the president since the founding. Our current system in which the president declares a national emergency, and that declaration unlocks powers that are included in other statutes, dates back to World War I.
--:-- Noel King: It really evolved organically, this sort of system where Congress would talk about national emergencies, and then the president started issuing declarations of national emergency. And in fact the sort of organic nature of it turned out to be a problem because there was no overarching law that governed the process and so there was no time limit on how long an emergency could stay in place.
--:-- Elizabeth Goytin: There was no reporting to Congress. This is why Congress in the 1970s enacted the National Emergencies Act. So what the National Emergencies Act did is first of all it placed a time limit on how long an emergency declaration could stay in place without being renewed by the president.
--:-- Noel King: The NEA also, as originally enacted, gave Congress the power to terminate an emergency declaration using something that was called a legislative veto. And that's a law that goes into effect with a simple majority of both houses of Congress and without the president's signature.
--:-- Elizabeth Goytin: And that was a ready means for Congress to shut down an emergency declaration that was either inappropriate or was lasting too long. But then in 1983, the Supreme Court held that legislative vetoes are unconstitutional.
--:-- Noel King: It's the president's duty to take care that the laws are faithfully executed. What we found in the legislative veto was that Congress would tell presidents after they had passed a law that they could or could not do things. This was Congress getting involved in the president's business.
--:-- Elizabeth Goytin: And so today, if Congress wants to terminate an emergency declaration, it basically has to pass a law by a veto-proof supermajority, which is, you know, next to impossible in today's political climate.
--:-- Noel King: How far can the president go with emergency powers? Like, what kinds of things could he do?
--:-- Elizabeth Goytin: Yeah, well, some of them, if you look at these 150 powers that are at the president's disposal in a national emergency, a lot of them really do seem reasonable just on their face. They seem measured, something that you would want and expect the president to have.
--:-- Noel King: But some of them really do seem like the stuff of authoritarian regimes. There is a law that dates back to 1942 that allows the president to take over or shut down communications facilities. This was last invoked in World War II.
--:-- Elizabeth Goytin: I have tonight issued a proclamation that an unlimited national emergency exists and requires the strengthening of our defense to the extreme limit of our national power and authority. Today, it could arguably be used to assert control over U.S.-based internet traffic.
--:-- Noel King: There's another law, and that's the International Emergency Economic Powers Act, that allows the president to freeze the assets of almost anyone, including a U.S. person, if the president deems it necessary to address a foreign or partially foreign threat.
--:-- Elizabeth Goytin: And in fact, the president can also make it illegal for anyone to engage in any financial transactions with that person, including, you know, something as simple as renting them an apartment or giving them a job or really even selling them groceries.
--:-- Noel King: So these are some really alarming authorities in terms of the potential for abuse.
--:-- Elizabeth Goytin: You've laid out why granting some of these powers does make sense in times of emergency. Some of them, though, really seem like a lot, just a lot of power.
--:-- Noel King: Donald Trump is a highly unusual American president. Is it possible that Congress made a mistake in assuming that every American president would be like the guy who came before?
--:-- Elizabeth Goytin: Yes. Huh. Okay. I'm hired. Thank you. Yeah, that's it. I'm done. That's my answer. Yes. I mean, Congress made a mistake. I mean, to be fair, Congress did give itself a ready means of terminating emergency declarations. And Congress did not foresee that the Supreme Court was going to take that off the table.
--:-- Noel King: However, I think it was a mistake to leave the law in place as it was without that safeguard. So I think it is time, past time, for a reckoning for Congress to not only reform the process of national emergency declarations and the termination of those declarations, but also to look at some of these individual powers like the Communications Act.
--:-- Elizabeth Goytin: That's the one that allows the president to take over or shut down communications facilities like the power over domestic transportation. And Congress should put some limits and safeguards on those powers.
--:-- Noel King: Elizabeth Goytin with the Brennan Center. She co-directs the Liberty and National Security Program.
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--:-- Noel King: Amanda Llewellyn and Hady Mawajdeh produced today's show. Jolie Myers edited. Andrea Kristinsdottir and Patrick Boyd are our engineers. And Laura Bullard checks the facts. I'm Noelle King. It's Today Explained. Thank you.
