In Woody Allen’s Bananas, the rebels overthrow the dictator of “San Marcos” only to watch their own leader, moments after seizing power, begin issuing lunatic decrees—underwear changed every thirty minutes, the official language switched to Swedish. An aide mutters, accurately, “[p]ower has driven him mad.”
Fiction allowed the rebels to remove their newly unhinged president in an instant. In today’s United States, that responsibility falls instead on the courts. Only they can stop the linguistic contortions and conceptual distortions by which Donald Trump seeks to convert ordinary executive authority, which assumes good faith, into something closer to authoritarian rule.
Fictional Emergencies
Trump has pounced on statutes that give a President enhanced power in an emergency. These statutes generally assume good faith in a finding that a “statutory predicate” exists, but Trump is acting in bad faith.
Thus, to hijack the congressional tariff power, he declared that long-standing trade imbalances satisfy the statutory requirement of a “national emergency” based on an ‘unusual and extraordinary threat.” Similarly, he circumvented judicial process to summarily deport unidentified people to foreign prisons notorious for torture by characterizing unlawful immigration by civilian alleged foreign gang members as an “invasion” leading to “irregular warfare” with their country. He justified using military forces in Los Angeles, Chicago and Portland by declaring that those places are engulfed in a “rebellion” and/or that “regular forces” are inadequate to execute the laws of the United States.”
These statutes are meant only for true emergencies. They require that predicate facts be true, but the predicates Trump is asserting are false.
Lower Courts Require a Factual Basis
Lower courts—including those with Trump judicial appointees—have tried to police this. They have generally rejected these specious declarations and enjoined Trump’s actions. However, the Supreme Court, acting primarily through “shadow docket” decisions with no explanation, has vacated these decisions, raising speculation that it will never require Trump to present any evidence to support his false self-serving claims, even when those contentions trigger extraordinary statutory powers.
Previously, in 1937, an earlier Supreme Court changed course and saved itself from possible legislative reconstitution. Justice Owen Roberts abandoned the 5-4 majority that had been voiding Roosevelt’s New Deal legislation and began to vote to uphold it. This “switch in time that saved nine” rescued the institutional legitimacy of the court, which was imperiled by inflexible readings of economic due process.
Today’s Supreme Court needs to similarly abandon its apparent political support for unfounded assertions of executive emergency power and start enforcing the Constitution.
Trump’s DOJ lawyers lean on a short line of jurisprudence, dating from Martin v. Mott, 25 U.S.19 (1827), to categorize these Presidential pronouncements as “political” and not reviewable by courts. Lower courts in these Trump cases have held that the President only is due great deference, not unquestioning submission.
Thus, in enjoining the deployment of national guard troops in Portland, the Trump-appointed district court judge found that Trump’s assertion that non-military officers could not enforce federal law was not a “colorable assessment” within a “range of honest judgment” and therefore did not justify the military deployment.
Earlier in 2025, several federal judges held that Trump’s declaration that the United States was amid an “invasion” was not factual and prevented him from using the Alien Enemies Act (AEA) to summarily deport suspected gang members to a foreign prison without any hearing. Although the Supreme Court ruled that some due process is required, it refused to curtail Trump’s claimed AEA powers. Similarly, it has allowed many of Trump’s actions, premised on questionable factual assertions, to continue.
The “Carte Blanche” Theory Destroys Constitutional Checks and Balances
Given that the Supreme Court has not explained its actions, the best expression of the view that courts cannot question Trump’s pronouncements came from Ninth Circuit Judge Ryan D. Nelson in a now-vacated concurrence. Judge Nelson, a longtime Federalist Society member appointed by Trump in 2018, held that the courts have no power to evaluate Trump’s “findings” at all. He wrote that under Martin v. Mott and a second 19th-century case, Luther v. Borden, 48 U.S. 1 (1849), “whether the President has lawfully invoked [the power to deploy the military domestically] presents a political question the courts cannot review.”
Judge Ryan generalized the findings in these two cases, which involved the President’s power in the case of an obvious armed conflict, into a principle that the President can say black is white and the courts must stand idly by and wait for the next election.
Under this standard, the President has carte blanche and we can kiss separation of powers and checks and balances good-bye. However, “[t]he mere incantation of ‘national emergency’ cannot, of course, sound the death-knell of the Constitution.” U.S. v. Yoshida Intern. Inc., 526 F.2d 560 (C.C.P.A. [predecessor to the Federal Circuit]1975)
As cooler heads in the Ninth Circuit have held, Martin v. Mott involved very different circumstances. The issue there was whether a militiaman could ignore deployment orders in the case of a hot war invasion. Under those circumstances, which were said to require “prompt and unhesitating obedience” to the President’s military orders, the courts had no role. In less dire circumstances, courts review statutory predicates unless Congress has clearly barred such review.
However, in the present domestic situation, where the statute in question had three clear preconditions to Presidential action, the Ninth Circuit accepted Martin only as requiring “a great level of deference to the President’s determination that a predicate condition exists,” but not that courts unquestioningly accept a decision that was “obviously absurd or made in bad faith.” (Newsom v. Trump, 141 F.4th 1032, 1048, 1050.) Following and quoting the more recent decision of Sterling v. Constantin, 287 U.S. 378 (1932), a case involving the governor of Texas’s proclamation that certain counties were in a state of insurrection, the Ninth Circuit found that “courts may at least review the President’s determination to ensure that it reflects a colorable assessment of the facts and law within a ‘range of honest judgment.’” (Newsom at 1051.) This standard was applied by the Trump-appointed District Court Judge in Portland and awaits Ninth Circuit en banc review.
It is fair enough for courts to be deferential, but except in the most exigent circumstances, they cannot altogether abdicate. The laws that Trump purports to follow have standards for his decision, unlike a statute that allows total discretion. Thus, for example, where the president is delegated the decision of which military bases to close with no required considerations, there is no room at all for court intervention, as in Dalton v. Spector, 511 U.S. 462 (1994).
Deciding if the conditions required by a statute exist is ultimately a judicial function. In Federalist No. 78, Hamilton explains that “[t]he interpretation of the laws is the proper and peculiar province of the courts.” Judges, he explained, must determine “the meaning of any particular act proceeding from the legislative body.” Since the statutes in question set out the prerequisites for a President to act, part of that function is determining if those prerequisites can reasonably be said to exist.
The Supreme Court is digging a hole with its weak and unpopular refusal to evaluate the facts at all.
The unsigned shadow docket rulings, many of which vacate stays on Trump’s actions ordered by lower courts, indicate indifference to the courts’ role in creating boundaries to Presidential power and put the Supreme Court at odds with the rest of our courts. This time, it appears two justices need to switch, but if they don’t, it will write the third branch of government out of independent relevance, a historic prerequisite for fascism.
It is not as if the John Roberts court has not asserted this power before. In Trump v. Hawaii, 585 U.S. 667 (2018), Justice Roberts followed a standard from previous cases that there be a “facially legitimate and bona fide” reason for Trump’s original travel ban.
The Tariff Case Offers a Road Back
The tariff case currently under submission to the Supreme Court is the perfect vehicle for the court to begin asserting its duty to require some factual support for presidential proclamations.
The tariff power is explicitly given to the legislative branch by the Constitution, which vests the “[p]ower to lay and collect Taxes, Duties, Imposts and Excises” with Congress (U.S. Const. art. I, § 8, cl. 1.) The President has no independent power regarding tariffs, so Congress must delegate any power that he may have. (See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952))
The International Emergency Economic Powers Act (IEEPA) under which President Trump purports to act, requires a national emergency that is “unusual and extraordinary” in order for the President to regulate international trade. While the court could rule against Trump by holding that for several good reasons that the power to “regulate” does not include the power to “tariff,” It could also start to assert that Trump cannot turn a rooster into an eagle by Presidential decree.
The justification for the “reciprocal” tariffs in Trump’s Executive Order 14257, set out in an elaborately constructed paragraph about various trade policies and barriers, is that there are a “large and persistent annual U.S. goods trade deficits [that] constitute an unusual and extraordinary threat to the national security and economy of the United States.” (Executive Order 14257, 90 Fed. Reg. 15041 (Apr. 2, 2025))
As was pointed out at the oral argument, “large and persistent” is the antithesis of “unusual and extraordinary” and therefore cannot be a justification under the IEEPA.
Moreover, the trade deficit justification clearly is not the basis of much of Trump’s tariff program. As Justice Amy Coney Barrett pointed out, Trump is “tariffing Switzerland, … which we have a trade surplus, 39 percent.” Moreover, Justice Sonia Sotomayor highlighted that Trump “imposed a 40 percent tax on Brazil because its Supreme Court permitted the prosecution of one of its former presidents for criminal activity” and “threatened to impose a 10 percent tax on Canada for an ad it ran on tariffs during the World Series.” Neither of these has anything to do with international trade at all.
Thus, in addition to finding that “regulate” does not mean “assess tariffs” under the “major question doctrine” and that Congress would not so vaguely and casually cede a power granted to it by the Constitution, the Supreme Court should call out the President’s fictional reason and refuse to let the courts be written entirely out of the Constitutional governing process.
The IEEPA requires a genuine emergency. Trump has declared a non-emergency to be an emergency. The Court should say so.
This would be a start. Judicial review of these false factual predicates is not optional; it is the core of constitutional government, and it is not asking much of the President.
Judge Stephen Kaus (Ret.) recently retired as a Superior Court Judge in Alameda County. Before that, he practiced in San Francisco for over thirty years and was active in the Bar Association of San Francisco. Judge Kaus serves as a mediator and arbitrator. This article also appeared on Judge Kaus's Substack, Paleo Punditry.