The biggest story of President Donald Trump’s second term thus far is his going to great lengths to expand his own power – and daring Congress, the courts and anyone else to stand in his way. Those who do so are labeled usurpers.
But the sheer brazenness of Trump’s power grabs has steadily come into focus via a stream of major judicial rebukes.
And it’s not just the language of the decisions that looms large; it’s also the sources. Even several judges appointed by Trump himself have now ruled he and his administration have gone too far, too fast. It’s a list that keeps growing.
That makes it increasingly difficult for the administration to continue arguing that the adverse rulings are truly about the judiciary’s overreach – as opposed to its own.
A case in point is Wednesday’s ruling by the US Court of International Trade striking down many of Trump’s most significant tariffs. The ruling could be one of the most significant yet, halting a centerpiece of both Trump’s economic and foreign policy agendas, though it was later paused by an appeals court while it considers more arguments in the coming weeks.
The unanimous three-judge panel of the International Trade court ruled that Trump exceeded his authority by effectively treating Congress’ granting of certain tariff authorities as carte blanche to do whatever he wanted.
And some of the language is pretty stark.
The case deals with Trump’s use of the International Emergency Economic Powers Act (IEEPA) of 1977. The act allows the president to levy tariffs “to deal with any unusual and extraordinary threat” emanating from outside the country “to the national security, foreign policy, or economy of the United States.”
Trump has declared national emergencies related to drugs and crime, as well as persistent trade deficits with other countries. He has sought to use those declarations to justify tariffs on Canada, China and Mexico, as well as the global tariffs he announced on what the administration deemed “Liberation Day” last month.
But the three-judge panel said the IEEPA “does not authorize anything as unbounded as the Worldwide and Retaliatory Tariffs.” It said that “such a reading would create an unconstitutional delegation of power.”
The panel said tariffs were not a valid method to “deal with” the threats Trump cited, because creating leverage over other countries doesn’t directly address drug trafficking.
(In a rather dryly worded footnote, the judges noted that the tariffs “do not change the effective rate of duty” – i.e. 0 percent – “for smuggled drugs themselves.”)
And it rejected the administration’s argument that the courts couldn’t question Trump’s emergency declarations, saying a provision in the law that limits a president’s tariff authority “is not a symbolic festoon.”
The White House responded to the major setback with familiar talking points. They took aim at the actions of “unelected judges,” asserting they shouldn’t be able to question Trump’s foreign policy actions. Top White House adviser Stephen Miller added on X: “The judicial coup is out of control.”
But yet again, the ruling included none other than a judge appointed by Trump.
Trump first nominated Timothy Reif to the federal trade court back in 2018. Reif joined in the unanimous opinion – along with judges appointed by former Presidents Barack Obama and Ronald Reagan.
There is some nuance here. Trump allies note that Reif was a Democrat who served in the Obama administration. (Trump had to nominate a Democrat, given the court is capped at five appointees from one party or another.)
But Reif was also a political appointee in the Trump administration, serving as a senior advisor under then-U.S. Trade Representative Robert Lighthizer before his nomination to the federal trade court. Indeed, his decision to serve in the Trump administration reportedly caught allies off guard, as the Daily Beast reported in 2017.
The Wall Street Journal described Reif as “a Democrat with a reputation as a protectionist,” which would suggest he could be sympathetic to Trump’s trade policies and tariffs. (One of Trump’s top trade advisers, Peter Navarro, is also a protectionist former Democrat.)
In sum, this is a vote that the administration would certainly prefer not to lose – especially given his vote wasn’t even necessary for the court’s majority.
But this is becoming a familiar tale. Repeatedly and increasingly, Trump-appointed judges have said the administration is grabbing too much power.
Earlier this week, a Trump-appointed US district judge in New York, Lewis J. Liman, blocked the administration’s attempts to thwart New York City’s congestion pricing program. He said the administration’s policy “undermines the authority of a sovereign state to authorize policy decided on by its elected representatives.”
Last month, another Trump-appointed US district judge, Stephanie A. Gallagher, ruled the administration had wrongly deported a man and had to “facilitate” his return.
Another, Trevor McFadden, ruled the administration had unconstitutionally retaliated against the Associated Press by barring it from White House events, calling US officials’ actions “brazen.”
Yet another, Fernando Rodriguez Jr., in recent weeks became the first district judge to fully reject the administration’s use of the Alien Enemies Act for rapid deportations.
Another, Stephanie Haines, said the administration could use the Alien Enemies Act. But she sharply undercut its utility by saying the administration hadn’t provided migrants enough time to challenge their deportations. The judge required they give 21 days.
And then there is, of course, the Supreme Court. Each of Trump’s three appointees to that court – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – has declined to dissent when the court sought to check Trump’s deportation powers. It’s actually been the other conservative justices, the ones appointed by Republican presidents before Trump, who have been more amenable to the administration’s actions. (The Supreme Court sometimes issues rapid orders that don’t denote who voted which way, but justices can note when they dissent.)
It’s somewhat fraught to focus too intensely on which president nominated a judge who issues a major decision. Federal judges, with the insulation of a lifetime appointment, are supposed to interpret the law without regard to politics.
But it says a lot that the people Trump has seen fit to appoint to such important roles have increasingly thwarted some of his boldest moves. That speaks to just how far he’s pushed the envelope in challenging the limits of his power.
This story has been updated with additional developments.
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