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Donald Trump’s ploy of declaring non-existent emergencies to grant himself extraordinary powers to impose tariffs, use the military to occupy blue cities, and deport undocumented immigrants suffered a series of setbacks over the past week. 

Late Tuesday, a divided three-judge panel of the 5th Circuit Court of Appeals, which is considered to be one of the most conservative in the nation, ruled that the president cannot use the Alien Enemies Act to deport alleged Venezuelan gang members because the administration failed to demonstrate that they are part of an “invasion” of the United States that is being carried out on the behalf of the government in Caracas.

It’s a sensible decision, since it is an absolutely ludicrous assertion that the US is somehow being attacked by Venezuela.

Writing for the majority, Judge Leslie Southwick, a George W. Bush appointee, stated in his opinion that “we find no invasion or predatory incursion.” He was joined by Irma Ramirez, who was appointed to the bench by Joe Biden.

Again, this should be a no-brainer, just like it is clear that Trump is making up emergencies left and right That’s certainly what (most) federal judges seem to think.

In three major cases, each of which affects a core part of Trump’s agenda, they ruled against the administration in the past seven days. 

There is no invasion from Venezuela, trade deficits are not a national emergency, and a contained and largely non-violent protest in Los Angeles was not an insurrection that justified the use of federal troops for domestic law enforcement tasks.

It is greatly troubling that Trump is claiming that these made-up crises grant him extraordinary powers the Constitution does not want him to have. In doing so, he is following a well-established playbook that authoritarians have used to dismantle the rule of law in their countries to then seize control of them.

What is perhaps even more disconcerting is that he may ultimately get away with it. 

Because, while it is apparent that these emergencies don’t exist, it is not clear that the Supreme Court will see things that way. There is a real possibility that the court’s right-wing majority will lend Trump’s power grab legitimacy. 

After all, he appointed three of the justices himself, and two others, Clarence Thomas and Samuel Alito, are his most rabid supporters on the court. 

That’s a sufficient majority of five, even if Chief Justice John Roberts comes down on the side of the Constitution (and common sense) because he doesn’t want the legacy of “his” court to be that it dismantled the rule of law. 

On Tuesday night, Andrew Oldham, the dissenting judge in this case, offered a glimpse of what this might look like. 

“For 227 years, every President of every political party has enjoyed the same broad powers to repel threats to our Nation under the [Alien Enemies Act],” he wrote in an angry dissent.* “And from the dawn of our Nation until President Trump took office a second time, courts have never second-guessed the President’s invocation of that Act. Not once.”

That sounds serious. 

Of course, the three times the act had previously been invoked was when the United States was actually at war – in 1812, and then during World Wars I and II.

There was nothing to second guess! 

The illegal immigration of some Venezuelans is clearly nothing like those situations.

But to Oldham, the variable that has changed is not the situation or the fact that the current president is the most authoritarian-minded leader the United States has ever had. 

“For President Trump, however, the rules are different. Today the majority holds that President Trump is just an ordinary civil litigant. His declaration of a predatory incursion is not conclusive. Far from it,” Oldham wrote. “Rather, President Trump must plead sufficient facts — as if he were some run-of-the-mill plaintiff in a breach-of-contract case — to convince a federal judge that he is entitled to relief. That contravenes over 200 years of legal precedent.” 

Well, yes!

While Oldham may want Trump to be special, he is (in theory) bound by the laws of the country like any other American. And, just because he declares that there is a “predatory incursion” doesn’t make it so.

But that’s not how Oldham sees it. To him, it sounds as though any declaration from Trump, who has demonstrably lied thousands of times while in office (and that’s low-balling it), should be taken at face value. 

Seeing how all of the cases we mentioned here will likely end up before the Supreme Court, we will see how the conservative majority, which has shown extraordinary deference to the president, feels about this. 

We wish we could convey a sense of optimism that, ultimately, the rule of law will prevail and that the high court will curb Trump’s power and his authoritarian aspirations. 

Sadly, we cannot. 

What is especially disturbing in this case is that the appeals court didn’t rule that the administration cannot deport Venezuelan gang members. 

“We declare, as did the Supreme Court, that our injunction solely applies to the use of the war-related federal statute and does not impede use of any other statutory authority for removing foreign terrorists,” Southwick wrote in his opinion. 

In other words, Trump has the tools to accomplish his policy goals. A GOP-led Congress could enact his tariffs, for example, or the Department of Homeland Security can use other statutes to remove foreign criminals. 

But, to a president who sounds more and more like a tyrant, that doesn’t go far enough. 

Trump, who has always expressed open admiration for dictators, wants absolute power – unrestrained by laws, courts, or elections. 

And we shudder to think what will happen when the Supreme Court gives it to him.

* Oldham’s dissent begins on page 55 of the opinion.