When my son Fenris was four years old, my wife and I instructed him that in the event of a genuine emergency, he should call 911 and request assistance. Within a week, Fenris picked up the phone, dialed 911, and informed the operator, “My sister is annoying me, and it’s an emergency!”

While the current president of the US is not literally four years old, as my son was at that age, Donald Trump’s definition of what constitutes a genuine emergency differs from the conventional understanding of the term. Consequently, the US Supreme Court, in a 6-3 decision, struck down Trump’s profligate and indiscriminate use of the International Emergency Economic Powers Act (IEEPA), passed in 1977, which authorizes the president to adjust tariffs unilaterally in the event of a national emergency.

Tariffs have become a major political issue during Trump’s second term, with 60% of Americans disapproving of tariff increases since his return to office. Such striking levels of disapproval are unsurprising, as tariffs directly affect household finances and therefore tend to attract attention, even among those who are not typically engaged with developments in Washington, DC

While the terminology surrounding them often obscures their meaning, a tariff is ultimately a tax on imports. In practice, taxes on goods and services are borne by the end consumers in the form of higher prices and lower savings. During his first year back in office, the cumulative effect of Trump’s tariff increases on the average American family was roughly $1,000.

However, the issue of tariffs extends beyond the inconvenience or financial strain on American families, who ultimately bear the tax burden. As Chris Chocola, a former Republican member of Congress, once noted, “Anytime a large, emergency spending bill makes its way through Congress, the potential for mischief is great.” The potential for such mischief is therefore even greater when the legislature has been bypassed altogether. In this case, the consequences of the Supreme Court’s ruling will extend beyond the setting of future tariff rates. It will also create a fiscal challenge that may prove difficult to resolve.

As a consequence of the Supreme Court’s decision that approximately $175 billion in tariffs collected under the auspices of IEEPA were improperly imposed, these tariffs are now refundable to the businesses that incurred them. Absorbing such substantial costs would place significant strain on the US Treasury, which would likely be forced to add the refunds to the federal deficit, already on track to reach 130% of GDP within the next decade. Indeed, Justice Brett Kavanaugh, who dissented from the majority, cited the difficulty of processing tariff refunds as one factor influencing his position.

When it comes to emergency powers, IEEPA is only the beginning. A patchwork of legislation empowers the president to act unilaterally in a wide variety of circumstances. Most notable among these is the National Emergencies Act of 1976. Although this legislation was originally passed to end long-standing national emergencies, it would ultimately empower the president.

At the time of its enactment, the US remained under several ongoing emergency declarations, some dating back to the Great Depression. The legislation ended these open-ended emergencies and codified more than 120 emergency powers that the president could invoke simply by declaring a new national emergency. Also relevant is the Trade Act of 1974, which Trump is now using to impose a 10% global tariff as a first step toward replacing tariffs that were struck down by the Supreme Court’s decision, albeit once again with dubious authority.

However, the scope of the president’s emergency powers is far broader than just trade. Since the end of the Second World War, Congress has passed several laws granting the president emergency powers. These include allowing the executive to adjust defense procurement and influence the domestic economy to increase or decrease the production of goods. The president can also declare major disasters, thereby unlocking various funding for humanitarian assistance while suspending individual legal protections. In addition, the president can deploy military forces without prior Congressional approval.

Absent further Supreme Court decisions, the only viable path to restoring the balance between the legislative and executive branches lies in the same process that disrupted it in the first place: legislation enacted by Congress to scale back the president’s emergency powers.

As Justice Neil Gorsuch noted in his concurring opinion:

Yes, legislating can be hard and take time. And yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man.

In the current environment, with the Republicans controlling both chambers of Congress, the prospect of good-faith deliberations with the Democrats to reach a compromise appears limited. However, if the Democrats were to regain control of one or both chambers in the upcoming midterm elections and potentially the White House in 2028, it remains uncertain whether they would have the political will to draw a valuable lesson from this administration: that granting the executive unchecked emergency powers is unwise, even when those powers may benefit one’s own party. After all, it is often convenient to declare something an emergency, whether to get back at an annoying big sister, as my four-year-old son Fenris did, or simply for political convenience.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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