Amicus brief: This isn't an emergency.

The Protect Democracy Project amicus brief argues that President Trump's "emergency" is a pretext. There is no emergency.

The courts can fix this, and should.

Protect Democracy Project website

My attorney Thad Guyer and I filed an amicus curiae brief in the tariff case at the Court of Appeals. Our brief focused on executive power that is metastasizing to take over control of tariffs, the Civil Service, and the judiciary. Tariffs are a place to draw the line and stop the executive overreach because the Constitution makes so clear Congress' sole power to set tariffs and levy taxes.

Other friends of the court made different points. The Protect Democracy Project is a public interest litigation group. They support anti-authoritarian, pro-voting rights causes. The burden of their brief is that Trump is claiming we are amid multiple emergencies, which means he has been granted Congressional authority to take over managing tariffs. The Protect Democracy brief disagrees, saying we don't have emergencies in the meaning of National Emergency Act or the International Emergency Economic Powers Act or in the common sense understanding of an emergency. 

Trump makes a second claim they oppose. Trump claims that once he announces an emergency, the courts cannot review that decision. Only a veto-proof majority of congress can say an emergency doesn't exist. The Democracy Project disagrees, saying the courts can determine whether an emergency exists.

Their brief discusses terms that are relevant to their case.

  -- One is "Chevron deference," a phrase I had heard for years. Based on the 1984 case involving the energy company Chevon and the Natural Resources Defense Council. The courts decided that federal agencies, e.g. the EPA, had the expertise needed to to fill in the blanks on how to set regulations to put into effect the general language of laws Congress enacts. This changed after a 2024 decision involving a Maine lobster company. A 6-3 Republican-appointed majority took power away from Biden's Department of Commerce, and said the courts would no longer give their previous deference to federal agency expertise. Instead, the Supreme Court decided that the courts had the power to resolve gray areas.

  -- Another is "major questions." Cases in the past two decades Courts created a rule that on matters of historical and economic significance, Congress must specify what they authorize the executive to do. They cannot leave it to the White House or executive departments to decide what Congress intended. That would be an improper delegation of power. The "major questions" rule is both a limit on the executive and a demand that Congress do its job when it writes laws.

Their brief argues that mass tariffs are unquestionably a major question. Therefore, the executive would need to have clear congressional authorization to make a tariff takeover like the one he is doing. The brief argues that specific direction had not been given in the NEA and IEEPA laws, and therefore Trump cannot leap into the void of defining what is an emergency. The brief says the courts should use the common sense meaning of an "emergency": an unforeseen transient event requiring immediate action. But Trump's own brief argued that the president "imposed these tariffs . . . to correct decades of trade imbalances and asymmetrical tariffs against American exports.” This isn't a surprise or transient situation, so it isn't an emergency. 

The claim of emergency is a pretext, the brief argues, to advance an authoritarian agenda and claim power given to Congress alone. Courts have the power to acknowledge this, as they did when Biden was president, and they should do so now, their brief argues.

From the Protect Democracy website

The brief puts Trump's actions into the broader context of the rise of anti-democratic authoritarianism worldwide, and warns the Court that the mechanism for the loss of liberty at home is claims of foreign threats requiring emergency powers. They cite the example of Peru, Russia, and Turkey, and they quote James Madison's letter to Thomas Jefferson: "Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad."

There is no emergency and there is no imminent threat. The brief urges the Court not to let Trump's pretexts be the cause of the loss of our Constitutional liberty.

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