The appeals court’s reasoning notably tracks the Supreme Court’s approach to statutory construction, relying upon a close reading of the text and applying the major questions doctrine, which holds, in the words of Justice Antonin Scalia, that courts should not presume that Congress “hide[s] elephants in mouseholes.” Notwithstanding the appeals court’s well-reasoned decision, it would be premature to bet against the administration when the case gets to the Supreme Court in November: the Court has of late upheld the exercise of executive power in a surprising array of circumstances.

Consider, for example, the Court’s decision in Trump v. United States. There, the appeals court issued a minimalist decision, limiting its review of the immunity from criminal prosecution enjoyed by the President to the circumstances of the case—namely, a case in which “a former president [was] indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay his presidential term.” Chief Justice John Roberts, ordinarily inclined toward minimalism – that is, toward judicial decisions that resolve the matter at hand while leaving larger issues for another day – instead wrote a maximalist opinion for the majority granting the President expansive immunity from criminal charges relating to his actions while in office.

And then there is the Trump administration’s recent record of success at the Supreme Court with emergency petitions. The administration has persuaded the Court to lift limits on executive action imposed by lower courts in cases relating to such matters as immigration enforcement, the termination of federal workers, and the dismemberment of Congressionally-created entities, like the US Department of Education. In many of these cases, the Court has provided little or no substantive explanation for its rulings; what seems clear is that the Court has come to share the perspective of Alexander Hamilton in Federalist No. 70, that the executive should be “vigorous” and “energetic”—a view of executive power under Article II that has allowed the President broad discretion to act.

Which brings us back to tariffs. The Court may see V.O.S. Selections as an opportunity to explore the breadth of executive authority in emergency circumstances, so it’s worth giving some attention to the way in which the dissenting opinion addressed that issue. The dissenting judges accepted the Trump administration’s assertion that at least some of the tariffs in question may be justified under IEEPA by the President’s need to confront an “unusual and extraordinary threat,” as the statute puts it. In the dissent’s view, the plaintiffs failed to challenge adequately the assertion by the administration that “deficiencies in ‘domestic production’ (including deficiencies in ‘the US manufacturing and defense-industrial base’ and to the nation’s making of agricultural products)” have been caused “wholly or partly … by the purchase of imported goods made abroad in place of domestically made goods.”

One problem with unquestioning acceptance of this assertion is that deficiencies in domestic production as a result of persistent trade deficits do not present an “unusual and extraordinary threat” in the ordinary sense of these words. To suggest that current circumstances, which represent the result of decades of deliberate policy determinations by Congress (as well as past Presidents and state governments), have, absent any immediate change to the nation’s trade relationships, suddenly become an emergency situation is to deny the possibility of any realistic limit on the exception under IEEPA. Though the plaintiffs may not have said as much, just because a party has not expressly argued that the moon is not made of green cheese does not mean that a court should blindly accept a president’s belief that it is.

To be sure, the dissent highlights the deference that ordinarily should be shown Presidential discretion in executing Congress’s commands. Such deference is often warranted, of course, when Congress expressly sought to empower the President to address circumstances that plausibly could be construed as exigent. Still, to paraphrase Justice Sandra Day O’Connor’s conclusion in the due process context, deference to the executive should not be regarded as a “blank check.” Indeed, the Supreme Court has recognized that there are circumstances in which a President has exceeded the bounds of legitimate authority to take immediate action in extreme circumstances: during the COVID pandemic, for example, the Court rejected the Biden administration’s contention that OSHA’s enabling statute allowed the agency to require that workers be vaccinated.

In sum, if a trade deficit that developed over a period of years is seriously considered to be an emergency situation, then it is possible that anything could be cast an emergency—which of course means nothing is an emergency, and Presidents could regard statutory emergency authority essentially as a blank check. While courts should not lightly seek to question an executive determination that an exigent situation is upon us, neither should they embrace a level of deference that would count as an emergency under a particular statute nearly any possible situation in which a President claims a need to act with dispatch.

It is far from certain that the question whether a trade deficit qualifies as an “unusual and extraordinary threat” under IEEPA will attract the Court’s attention when V.O.S. Selections is argued. Should the justices confront it, however, we should hope they consider the consequences of effectively granting more power to Presidents so eager to pursue their policy initiatives that they seek to avoid the constitutional responsibility of persuading the people’s representatives in Congress of the need for those initiatives. Respect for the democratic process, after all, should be the least the Constitution demands.