The Supreme Court in May. Photo / Wesley Lapointe, for The Washington Post
The United States Supreme Court has already expanded President Donald Trump’s authority in a string of emergency rulings.
In his firing of Federal Reserve governor Lisa Cook and other issues probably headed to the court, he’s signalling that he continues to seek broader powers for the executive branch of government.
The cases could serve as major tests of how much further America’s high court is willing to go to bless the President’s assertion of executive authority.
They differ from previous showdowns because of the sheer magnitude of the authority Trump is seeking to wield and because he wants greater control over powers that the US Constitution ascribes to another branch of government.
In addition to Cook’s case, which could make its way to the high court after she sued last week, a blockbuster case over Trump’s tariffs is expected to arrive at the Supreme Court soon after an appeals court struck them down.
The Trump Administration’s push to withhold tens of billions of dollars in foreign aid appropriated by Congress could also end up in the court.
Peter Shane, a law professor at New York University, called Trump’s assertions “breathtaking”.
“Other presidents have tried to use their authority aggressively, but usually it’s been done through aggressive interpretations of statutory law and in a pretty targeted way,” Shane said.
Each of the presidential powers being contested by Trump, he said, “is a challenge to what I think heretofore would have been regarded as a core power of Congress”.
The high court has already signalled openness to broad presidential authority to replace some heads of independent agencies.
The justices handed Trump a major victory in May when they allowed him to remove the leaders of the National Labour Relations Board and the Merit Systems Protection Board while legal challenges play out over their firings. Trump gave no reasons for the dismissals.
The court’s conservative majority ruled that the Constitution vests all executive power in the president, so Trump could fire the agency heads “without cause” even though Congress set up the agencies to be insulated from political interference.
But the justices drew a red line around one agency: the Federal Reserve, which was created by Congress to operate independently of the president so it can set interest rates based on economic conditions - not political pressure.
The justices indicated that its governors probably could be removed only for cause.
Trump is testing that red line in his firing of Cook, making him the first president in the 111-year history of the agency to try to oust one of the seven governors who help set US monetary policy.
Trump said he was firing Cook for “sufficient cause”, alleging she made false statements on mortgage applications in 2021, before she was nominated to the Fed by President Joe Biden. Trump officials have since made additional allegations.
Cook called her removal “unprecedented and illegal” and a pretext to allow Trump to cobble together a Fed board that will accede to his wishes for lower interest rates.
A federal judge heard Cook’s request for an injunction but was not expected to make a decision until after Labour Day.
The legal battle over Cook’s firing is likely to turn on how the courts interpret “for cause” - a phrase not defined in the law creating the Fed and one that has never been litigated before.
Duke University law professor Jefferson Powell said there is also a procedural question: “Does [Trump] have to establish up front in some clear way that he knows she did something that gives him for-cause removal basis, or can he just go ahead and remove her?”
Trump officials said in filings in Cook’s case that the courts should be “highly deferential” to the president’s determination of cause and not second-guess his rationale.
In the second case, over most of Trump’s tariffs, an appeals court last week found that the levies on foreign goods were illegal but stayed its ruling for now. Trump has indicated that an appeal to the Supreme Court is coming.
The sweeping tariffs are the main feature of Trump’s trade war. He has called them necessary to restore America’s manufacturing base and save jobs. They have unnerved investors and created uncertainty for consumers and businesses.
Trump began imposing tariffs in February, declaring emergencies under the International Emergency Economic Powers Act.
The law allows the president to take actions on trade in response to foreign threats, but Trump is the first to use it to assert virtually unlimited authority to impose tariffs.
Congress has delegated limited authority to the president to enact tariffs, but the Constitution gives the legislature the power to levy taxes on imports.
The president in February announced levies of 10 to 25% on goods from China, Mexico and Canada, accusing those countries of failing to stem the flow of fentanyl and other illegal drugs into the US.
In April, Trump imposed a universal 10% import tax on all trading partners and higher rates on roughly 60 countries, dubbing it “Liberation Day”.
Trump wrote in his executive order on the latter tariffs that “large and persistent” US trade deficits constitute “an unusual and extraordinary threat to the national security and economy of the US”.
A handful of small businesses and a group of states filed separate lawsuits against the tariffs in April, saying they would cause widespread economic harm. The small businesses called Trump’s imposition of tariffs an illegal “power grab”.
The US Court of Appeals for the Federal Circuit ruled last week that the law did not give Trump that power.
“The statute bestows significant authority on the president to undertake a number of actions in response to a declared national emergency, but none of these actions explicitly include the power to impose tariffs, duties, or the like, or the power to tax,” the majority wrote in the ruling.
The third case, on whether the Trump Administration can freeze billions in foreign aid, is part of a long-running legal standoff that is reaching a head because the funds budgeted by Congress are set to begin expiring at the end of the financial year in September.
As one of his first acts in office in January, Trump announced a wholesale pause on foreign aid, saying it was not in keeping with American interests or values.
International aid groups sued, saying the block would cause a humanitarian crisis and was a violation of the separation of powers, since the Constitution gives Congress the power of the purse.
US District Judge Amir Ali found in February that Trump did not have the authority to withhold money and ordered it restarted. A fierce legal battle followed over whether Trump officials were complying with the order.
This month, a panel of appeals court judges blocked Ali’s injunction, saying the plaintiffs didn’t have standing to sue. But the full appeals court did not allow that order to take effect while it considered whether to rehear the case.
That prompted the Trump Administration to ask the Supreme Court to step in to block Ali’s order.
The appeals court ultimately declined to rehear the case but sent it back to Ali, leaving open the possibility that the legal fight could continue and the aid groups could seek a new injunction on the aid freeze.
That means the case could go back to the Supreme Court in the coming days, setting up a showdown over Trump’s authority to impound funds.
Separately, the Trump Administration moved last week to use a little-tested tactic, known as a “pocket recission”, to unilaterally cancel about US$5 billion of the foreign aid without congressional approval.
Democratic and Republican leaders questioned the legality of the move, and it could spark additional legal challenges.
Lauren Bateman, a lawyer for plaintiffs in the foreign aid case, contends that it was always the Administration’s intent “to run out the clock and allow those funds to expire”, against the wishes of Congress.
“The Administration’s affronts to the rule of law are staggering - and all to withhold aid from the most vulnerable people in the world,” Bateman said in a statement.
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