Next week, the U.S. Supreme Court will hear a case that may determine whether the checks and balances that are the foundation of our Constitution will endure.

To date, Trump has proclaimed numerous “emergencies” to avoid what would appear to be clear legal limitations on his power.  A number of lower federal courts have scrutinized these proclamations and found that concocted emergencies did not provide legal justification for the imposition of tariffs or deploying troops to American cities.  However, the Supreme Court has failed to rein in Trump’s expansive aggregation of power in any meaningful way.

The first major case to test whether the Supreme Court has any interest in checking Trump’s power will be on tariffs.  The Trump administration has attempted to get around the constitutional principle that taxes and tariffs must be authorized by Congress by arguing that Trump has broad emergency powers to act alone.  As discussed more fully in my previous post, the so-called emergencies advanced by Trump are: (a) drug trafficking from Mexico and Canada; and (b) unfair trade practices throughout the world that allegedly have victimized the United States.   

If these issues, which have been in existence for decades, qualify as emergencies, then virtually anything can qualify as an emergency. Two lower federal courts have recognized that these issues are not sufficient “emergencies” that justify ignoring the mandate that only Congress can impose tariffs.

In light of the friendly deference the Supreme Court appears to already have signaled toward the Trump administration, there is reason to believe that a majority of the justices will refuse to provide any common-sense review as to whether Trump’s emergencies are merely made-up subterfuges, as seems apparent on their surface.  Justice Kavanaugh already has suggested that he may be reluctant to “second-guess” any determination that Trump makes, especially concerning foreign affairs.  If Roberts and Barrett join in this view, it is likely that the tariffs will be upheld despite the fact that the Constitution requires Congressional action for such.   

But such a ruling would be a green light for much worse.  Trump already is sending troops to Chicago and Los Angeles for the supposed reason that there are “emergencies” stemming from high crime, even though violent crime actually is down in those cities, and local authorities oppose it.  He has ordered the military to kill alleged drug smugglers on the high seas without any trial or due process - effectively acting as judge, jury, and executioner – by proclaiming that drug importation is an emergency even though it has been occurring for as long as anyone can remember.

If the executive branch can do anything it pleases, even if illegal, by declaring an emergency, and if it is the sole decider of the existence of an emergency without any judicial review, this will inevitably lead to virtually absolute power in the hands of one man.  Trump will use fabricated emergencies as a pretext to take election administration from the states or even run for a third term. Nobody believes that Congress will do anything to prevent this.  If the Supreme Court allows it to happen, it will fail in its most important responsibility - to prevent the decimation of the Constitution.       

In other words, if the Constitution can be ignored merely by unwarranted emergency proclamations that cannot be reviewed, then there will be nothing left of the Constitution, and there will be no good reason for the continued existence of either Congress or the Supreme Court.