The Dictatorship
Trump’s tariffs are going to the Supreme Court — the justices’ decision should be an easy one
Last week, a federal appeals court found that President Donald Trump’s imposition of sweeping tariffs on billions of dollars of goods coming into the U.S. exceeded presidential authority.
In doing so, that court merely applied recent rulings of the Supreme Court to the tariffs. In fact, the case against the tariffs is even stronger than the one filed against the Biden administration’s student loan relief planin which the justices had no problem halting assistance to millions of Americans.
On Tuesday, Trump said his administration will ask the Supreme Court to expedite the White House’s appeal of the verdict. When the justices ultimately hear the tariff casewill they simply apply their own precedent in a straightforward and even-handed way regardless of who is in the Oval Office? Or can we expect this court to, once again, impose a different set of rules when it is a Trump policy that is being challenged?
The power to impose tariffs is one explicitly provided for in the Constitution — but it is Congress that wields that power.
In 2022, as the nation was still recovering from the Covid-19 pandemic, Miguel Cardona, the secretary of education under President Joe Biden, invoked the Higher Education Relief Opportunities for Students Act (HEROES Act) of 2003 to cancel up to $20,000 in outstanding student debt for millions of American student loan borrowers. The law grants the secretary of education the power in a presidentially declared national emergency to “waive or modify” elements of federal student loans and develop new rules that would operate “in lieu of” existing program regulations — power that Trump’s first-term secretary of education, Betsy DeVos, exercised at the beginning of the pandemic.
The Biden-Cardona plan was challenged by several red state attorneys general. The Supreme Court’s conservative super-majority made quick work of the Biden plan, ruling, in a 6-3 decisionthat the loan plan exceeded the congressional grant of authority under the HEROES Act on several grounds, rendering it illegal.
First, despite the explicit language authorizing the administration to “waive or modify” student loan terms, the Court found that this authority did not include the power to simply cancel student debt. The majority would parse the terms “waive or modify” and find that the administration had the power to make “modest” and not wholesale changes to the program.
Second, the majority found that prior administrations had never exercised the relevant authority under the HEROES Act to cancel loans altogether. Since no prior administration had sought such authority, that suggested that no prior administration believed it had such authority.
Finally, the court surveyed the scope of the student loan program and determined that waiving hundreds of billions of dollars of potential revenue represented a significant portion of the federal government’s discretionary spending. Because of that, such a significant policy initiative could only be instituted with express congressional authority.
In doing so, the court turned to a doctrine the conservative justices had invoked several times against the Biden administration, what they have called the Major Questions Doctrine. According to this doctrine, when the executive branch exercises authority it claims Congress has granted to it with respect to a significant policy issue, that grant of authority must be clear and explicit.
Presidents have never exercised this sort of tariff power without congressional approval.
When one looks at the court’s reasons for invalidating Biden’s student loan program and applies them to the Trump tariffs, any fair reading of that prior decision — whether one agrees with it or not — means that the court should affirm the lower court’s decision: The Trump administration exceeded its authority when it issued a range of far-reaching and sweeping tariffs on global trade.
First and foremost, the power to impose tariffs is one explicitly provided for in the Constitution — but it is Congress that wields that power. That branch has granted some economic powers related to international trade to the executive, even emergency powers, but the main statute the Trump administration claims grants the president authority to impose tariffs as he chooses, the International Emergency Economic Powers Act (IEEPA), never even comes close to doing so. In fact, it doesn’t even mention the term “tariff.”
Granted, the authority extended to the executive branch under the statute is fairly broad, lists many things the president can do in a declared emergency and provides procedures by which the president can do them. Nowhere, however, does it grant the president the authority to impose tariffs. So, unlike in the student loan case, the court does not have to interpret specific terms in a grant of authority and decide how far to extend that power given those terms.
Rather, the power to impose tariffs is not one of the expressly named powers in the IEEP. And when Congress grants some powers and withholds others, the president can only act in ways that are expressly authorized by statute. Here, there are no terms for the court to interpret; and it cannot read into a statute what is not there.
When we look to other grounds upon which the court’s conservative majority struck down the Biden student loan plan, the case is even more persuasive for this court to do the same with the Trump tariffs.
Presidents have never exercised this sort of tariff power without congressional approval. Moreover, the tariffs, by the president’s own claimswill bring in trillions of dollars to the U.S. economy, dwarfing even the massive impact the court claimed the student loan program would have.
For these reasons, in this case, in the absence of an explicit grant of congressional authority, there is an even stronger argument that can be made for the court to invalidate the tariffs under its prior rulings applying the Major Questions Doctrine.
Of course, there’s a good chance the court will side with Trump, which would only provide further evidence of what many Americans fear: that this court has a different set of rules for the Trump administration. Or, as Justice Ketanji Brown Jackson wrote recently in a dissenting opinion involving the administration’s efforts to gut funding programs of the National Institutes of Health, the only rule is that there are no rules save one: that “this Administration always wins.”
Ray Brescia
Ray Brescia is a professor of law at Albany Law School and author of the book “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.”
The Dictatorship
Russian attack on Ukraine capital kills at least 3 and traps others in damaged buildings
KYIV, Ukraine (AP) — Russia attacked Ukraine with a barrage of missiles and drones overnight, killing at least 11 people, injuring dozens and trapping others, authorities said on Tuesday.
Russia unleashed 73 missiles and 656 drones across Ukraine, according to the country’s air force, with the main targets including Kyiv, the central city of Dnipro, and the eastern cities of Poltava, Kharkiv and Zaporizhzhia. Ukrainian air defense forces destroyed and suppressed 40 missiles and 602 drones.
Hits of 30 ballistic missiles, three cruise missiles and 33 drones were recorded at at least 38 locations. Debris from destroyed drones fell on 15 locations, the air force said.
At least four people were killed in Kyiv and 58 people were injured, including three children, Ukraine’s state emergency service said in a statement on Telegram. Residential buildings and other civilian infrastructure were damaged in eight of Kyiv’s districts.
In the central Dnipropetrovsk region, at least six people were killed and 36 others injured after Russian strikes hit the city of Dnipro, according to the emergency service. A second attack as first responders arrived at the scene killed one rescuer.
In Kharkiv, at least 14 people were injured and residential homes, garages and cars were damaged.
A two-story residential building and part of a four-story apartment block were damaged, with people trapped beneath the rubble of the larger building.
The boom of explosions echoed through most of the night and into the early morning. Kyiv had been bracing for another mass attack for days, after Ukrainian President Volodymyr Zelenskyy warned that Russiawas preparing a renewed assault and urged people to remain cautious and seek shelter during air raid alerts.
In the Podilskyi district, there was partial damage to the upper floors of a nine-story building, trapping people under the rubble. Rescue operations were still underway in the early hours of the morning, even as the air raid alert remained in effect.
In the Solomianskyi district, a 20-story building and a 24-story building were damaged.
Ukrainian officials have been pressing allies for more air defense missiles to counter Russia’s ballistic missile attacks. While Ukraine continues to intercept a high percentage of drones, ballistic missiles remain a major vulnerability for the country’s air defenses.
The Dictatorship
Even if Trump kills his $1.8 billion slush fund, his IRS lawsuit headache isn’t over
ByNick Akerman
President Donald Trump is in a legal bind of his own making.
Reports emerged Monday that Trump, under pressure from Republican lawmakersis preparing to drop the $1.776 billion “anti-weaponization” fund that sparked public outragepolitical chaos and, crucially, legal questions. The Justice Department announced it would temporarily pause implementation to comply with a court order.
There’s no indication that Trump would also drop the IRS immunity that was part of his controversial lawsuit settlement. Therefore, a federal judge is likely to proceed in her inquiry that poses a significant legal threat to Trump.
The president may be preparing to drop the settlement fund that has sparked political backlash, but if he attempts to hold on to the IRS immunity, he would still have to answer to Williams.
Judge Kathleen M. Williams signaled Friday that she is deciding whether to reopen Trump’s $10 billion lawsuit against the IRS in order to investigate the propriety of the lawsuit and the subsequent settlement.
Trump, of course, had recently withdrawn the lawsuit he filed in January against government agencies under his control. The Department of Justice later announced a settlement that created a slush fund for allies and precludes future IRS investigation of him, other Trump family members and Trump businesses.
The settlement in the wake of Trump’s dubious lawsuit reeked of self-dealing — and now the judge’s order may leave Trump with little room to maneuver. The president may be preparing to drop the settlement fund that has sparked political backlashbut if he attempts to hold on to the IRS immunity, he would still have to answer to Williams.

A lawsuit is valid only when there is “a case or controversy” between adverse parties. Since Trump controls the executive branch, there was an obvious lack of adversity between a sitting president and entities whose decisions were subject to his direction. From the outset, Williams, who presides over the case in the Southern District of Florida, expressed skepticism of the lawsuit’s legitimacy. She asked the parties to submit briefs addressing whether the lawsuit was, in fact, a legitimate adverse proceeding.
Two days before the briefs were due last month, Trump moved to dismiss the case. Williams granted the motion but was not informed about the settlement the Justice Department later announced.
Last week, 35 former federal judges filed a motion asking Williams to reopen the case. They argued that “the purported ‘settlement’ that the parties never placed before this Court raises profound questions about the parties’ candor toward the Court and manipulation of the judicial system, which threatens to undermine confidence in the administration of justice.” The settlement is “a fraud on the Court,” they wrote.

Other lawsuits have been filed over the settlement, but Williams’ court is by far the best forum for addressing this settlement. One suit was brought in Washington, D.C., by former Capitol Police officers who defended the Capitol on Jan. 6, 2021. The other was filed in Virginia by public and nonprofit entities. A federal judge’s temporary order in the Virginia lawsuit is what the Justice Department responded to Monday. Those two suits challenge the creation of the fund, but neither addresses the issue of future IRS immunity. The two lawsuits are also likely to be dismissed for lack of standing over the plaintiffs’ failure to show a concrete injury traceable to the settlement.
Judge Williams, by contrast, is positioned to unravel the entire agreement. Federal courts possess inherent contempt powers and may investigate and remedy improper conduct by attorneys and litigants. That authority can include appointing a private attorney to assist in investigating and prosecuting criminal contempt — when, as here, there is reason to believe the Justice Department has a conflict.

Two days after the 35 former judges filed their motion, Judge Williams issued an order in response. The court, she wrote, “is empowered to investigate serious misconduct as a collateral issue” and to determine whether the suit was filed for an “improper purpose.”
Among the key points in her order:
- the grant of IRS immunity did not relate “to the immediate subject matter of the claim,” which was the leak of Trump’s tax information;
- the IRS and the U.S. Treasury “did not ‘even try[] to defend against” Trump’s claims, despite actively opposing “nearly identical claims in other litigation”;
- and, as the former judges had argued, Trump’s claims were “clearly untimely” and barred by the expired statute of limitations.
Williams ordered Trump, the IRS and the U.S. Treasury to respond by June 12 on: “(1) the charges of collusion and whether the Parties are
truly adverse; (2) the assertion that the dismissal in this case was premised on deception by the Parties; and (3) the question of whether the case should be reopened because the Court was the ‘victim of a fraud.’”
So here is Trump’s quandary: He must answer Williams’ questions with facts. He cannot simply submit a memorandum filled with platitudes denying collusion or dismissing the matter as a witch hunt. The court will likely expect sworn affidavits setting out facts to support any defense that there was no collusion and no deception.
An affidavit from a third party such as acting Attorney General Todd Blanche — Trump’s former criminal defense lawyer, who in his new role signed the immunity agreement and has defended the overall settlement — would likely be insufficient on its own.

The judge will almost certainly expect Trump, the named plaintiff, to submit an affidavit himself responding to all three of Williams’ inquiries.
Whatever is filed in response to the court’s order could raise additional issues, which could lead to an evidentiary hearing with witnesses. Matters not fully addressed in the affidavits or that otherwise remain ambiguous would need to be explored, with Williams empowered to assess credibility firsthand.
Such a hearing would pose significant legal risks for Trump. He would be expected to explain remarks such as when, asked about being on both sides of a lawsuit, he told reporters, “I’m supposed to work out a settlement with myself.”
His testimony could also expose him to criminal liability beyond fraud on the court, such as a broader fraudulent scheme to defraud the government of massive taxpayer funds in violation of Title 18 U.S.C. § 371. Conspiring to deceive the government is a federal felony punishable by up to five years in prison.
At any hearing, Trump would be free to invoke his Fifth Amendment privilege against self-incrimination. But that choice can be used against him and could provide the judge with more than ample basis to nullify the settlement. Because Trump brought the lawsuit in his personal capacity, he would not be entitled to presidential immunity for “official acts” under the Supreme Court’s 2024 decision in Trump v. United States. His testimony at such a hearing could also be used against him in a later criminal prosecution.
Because we have an independent judiciary and judges committed to the rule of law, Trump could remain accountable for fraud or other misdeeds he may have committed in pursuing his lawsuit against the IRS or the settlement. Jettisoning the controversial fund doesn’t automatically end Judge Williams’ inquiry.

Nick Akerman
Nick Akerman was formerly an assistant special Watergate prosecutor and an assistant U.S. attorney for the Southern District of New York and is currently a practicing attorney in New York City.
The Dictatorship
Democrats still do not trust Trump on $1.8 billion fund — and neither do some Republicans
Almost no one on Capitol Hill is convinced by the White House’s offer to drop its plans for President Donald Trump’s nearly $1.8 billion settlement funda pot of money that is fueling a growing crisis for GOP leaders.
Instead, Democrats want to address the issue legislatively and Republicans may have no choice — and may also want some congressional clarity.
Nearly two weeks after the planned fund sparked a GOP revolt against a key immigration funding bill, the Trump administration promised Monday to drop the payout proposal. A senior White House official told MS NOW the administration was halting its plans, and the Justice Department posted on X it would “abide by” a temporary court ruling against the fund.

Those promises were too vague for critics in either party.
“They have to follow the law,” Sen. John Kennedy, R-La., said of the DOJ post vowing to follow a court order. “We all have to follow the law. That’s why God made jails. Yeah, if you don’t follow the law, you go to jail. It doesn’t tell me much.”
Senate Judiciary Chairman Chuck Grassley, R-Iowa, called for a clear end to the plans for a fund.
“The only thing that’s going to solve this problem to get immigration funded and law enforced is for the president to do away with the weaponization fund,” Grassley told reporters.
Sen. Lisa Murkowski, R-Alaska, questioned whether the DOJ plan to follow a roughly two-week court order would actually eliminate the fund.
Sen. Bill Cassidy, R-La., said he was open to voting for legislation to block the fund and said he would look into the White House’s statements about it.
“I need to be convinced,” Cassidy told reporters.
Democrats were even more skeptical about the White House’s promise.
“For five minutes,” Sen. Patty Murray scoffed when asked about the plan to drop the fund. “I don’t believe that.”
This week’s congressional search for meaning in a hazy set of promises from the White House is unusually urgent. A Republican bill with $72 billion for Immigration and Customs Enforcement and Customs and Border Protection is dependent on a resolution on the settlement fund. Democrats have vowed to force votes to amend the ICE funding bill to include a measure barring Trump’s “slush fund,” as they call it.
Before the White House said it was abandoning its plans, it looked like some of those Democratic amendments would get enough Republican support to be adopted. Now? It is possible those proposals get even more votes, with GOP lawmakers seeing a jailbreak forming.
“I’m sure the Democrats are going to give us an opportunity to vote on lots of different amendment ideas, but I think if the administration effectively shuts it down, and makes that very, very clear, then that to me should answer the question,” Senate Majority Leader John Thune, R-S.D., said Monday.
Thune left open the possibility of votes this week on the reconciliation bill.
The nominal concessions from the White House do highlight the ability of Republican lawmakers to pressure the White House — at least, when they are motivated to do so.
Speaker Mike Johnson, R-La., met with Trump on Monday, and that meeting played a key role in the decision to drop the anti-weaponization fund, a source familiar with the matter told MS NOW. Johnson helped convince Trump to drop the proposal to help achieve a path forward for ICE funds. A House Republican told MS NOW that several GOP lawmakers leaned on Johnson to try to kill the fund.
Senate Minority Leader Chuck Schumer, D-N.Y., said on the Senate floor Monday that if Republicans take up the bill, “the first amendment I will offer will be to ban the slush fund permanently and forever.”

Murray, the top Democrat on the Senate Appropriations Committee, told MS NOW she expects to debate the issue as part of the annual government-funding negotiations, as well as via the GOP’s attempt to pass a one-time reconciliation bill.
Of course, Republican critics of the proposal may seek a softer response, rather than a permanent ban. Sen. John Hoeven, R-N.D., said GOP conversations have centered on how to “get some guardrails” on the fund.
Some Republicans may simply accept Trump’s promise to drop the issue. Sen. Rick Scott, R-Fla., told reporters he spoke to a White House official Monday and was assured the administration is dropping the fund.
“I’m comfortable,” Scott said. “They told me they’re dropping it.”
But more and more Democratic proposals to block the fund are springing up.
Sens. Adam Schiff, D-Calif.; Mark Kelly, D-Ariz.; and Elissa Slotkin, D-Mich., said they were introducing a bill to block the fund — and any similar lawsuit funds created by future presidents. Kelly said he has discussed the fund with Republican colleagues who were concerned about it and said he would revive those conversations about the bill to block it.
Schiff said he views the White House offer to drop the fund as a “tactical retreat.” Slotkin also said she is not buying it.
“If you believe that a temporary two-week hold by this president means anything, I have a bridge I want to sell you,” she told reporters.
There is also the unresolved issue of Trump and his family’s immunity from IRS audits. As part of the president’s decision to drop a $10 billion lawsuit against the IRS, the DOJ promised to create the nearly $1.8 billion fund and shield Trump and his family from audits — including a pending audit in which Trump is said to owe the IRS roughly $100 million.
While Trump appears to be dropping the $1.8 billion fund — at least for now — the fate of Trump’s get-out-of-audits-free card is more unclear.
Democrats appear likely to offer amendments addressing that resolution during the upcoming reconciliation fight, as well as measures forcing votes on other Trump-related priorities, such as his proposed ballroom project.
In all cases, Trump looks like he wants to avoid lawmakers weighing in — something Thune acknowledged Monday when he said the addition of language blocking the fund to the reconciliation bill could jeopardize Trump’s signature.
Whether Trump’s supposed promise is enough for Republicans remains uncertain, as does the fate of the underlying reconciliation bill. “To be determined,” Thune said Monday night.
Asked whether Republicans would try to move forward with the measure this week, Thune told reporters they would “know by tomorrow.”
Jack Fitzpatrick covers Congress for MS NOW. He previously reported for Bloomberg Government, Morning Consult and National Journal. He has bachelor’s and master’s degrees from Arizona State University.
Mychael Schnell is a reporter for MS NOW.
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