JUANA SUMMERS, HOST:
The justices of the U.S. Supreme Court aren't scheduled to meet with each other face-to-face until the end of this month, but already, there's a legal truckload of Trump administration appeals that the court will almost certainly have to decide this term, and each day seems to bring another blockbuster. NPR's legal affairs correspondent, Nina Totenberg is here in the studio with more. Hi.
NINA TOTENBERG, BYLINE: Hi there.
SUMMERS: So Nina, it's been nine months of the Trump administration, and it's an administration that has seen a number of legal challenges. What might we expect from the court this term?
TOTENBERG: You know, whatever I tell you this evening will be superseded or added to tomorrow or the next day. And that's because the Supreme Court, after dancing around most of the challenges to Trump executive orders, will soon face a bunch of cases that can't be avoided. They can't be - the can can't be kicked down the road. I say dancing around because the court, for the most part, until now, has blocked lower court decisions against Trump on a raft of issues. But these blocks, or stays, as they're called, are only temporary when the cases play out in the lower courts. But now, nearly a year into the second Trump administration, the lower courts - both district and appeals courts - have issued full-blown decisions in some of these cases - really big cases - and the court will have to deal with those lower court decisions on the merits, not on the question of a temporary stay.
SUMMERS: Got it. So tell us, Nina, what is the biggest case facing the Supreme Court at the moment?
TOTENBERG: Well, it depends a little bit on what floats your boat.
SUMMERS: (Laughter) OK.
TOTENBERG: (Laughter) In terms of the structure of modern government and the economy, it's probably two issues - tariffs and the Federal Reserve Board. First tariffs - this week, the U.S. Court of Appeals for the Federal Circuit ruled by a 7 to 4 vote that the president exceeded his authority imposing tariffs worldwide with virtually no restraint. The circuit court stayed its ruling to allow Trump to appeal to the Supreme Court, and that means that we almost certainly will get a decision on Trump's tariff power this term.
SUMMERS: OK, so that was tariffs. What about the Federal Reserve Board?
TOTENBERG: Well, the court in recent months has all but formally overturned a nearly 100-year-old precedent that barred firing independent agency heads. But in one recent opinion, the court seemed to carve out an exception for the Federal Reserve Board members. Trump, who's made no secret of wanting to fire Jerome Powell, the head of the Fed, has now fired a different board member, Lisa Cook. She was appointed by President Biden, and her case is now kind of a test case. And that is making Trump allies in Congress and the business world very nervous because the Fed, since its creation in 1913, has been viewed as an apolitical, independent force for stability in the American economy, and all of this will undoubtedly come to a head in the coming months.
SUMMERS: Last thing, Nina, I understand that President Trump's use of the Alien Enemies Act is another major case that is likely to make its way to the court. Tell us about that one, if you can.
TOTENBERG: Yes, that's the law enacted in 1798 that allows the deportation of immigrants in times of foreign invasion. It's a law that until now has been used only three times, always in wartime - declared wartimes - including to round up Japanese Americans and put them in camps during World War II, an action that both Congress and the Supreme Court have since repudiated.
The Supreme Court earlier this year, rather than decide whether Trump's invocation of the Alien Enemies Act was legitimate, sent the case back to the very conservative 5th Circuit Court of Appeals to answer specific questions, among them, was Trump's action legal? And last night, a 5th Circuit panel found that Trump's use of the Alien Enemies Act to deport undocumented individuals was illegal. Writing for the panel majority, Judge Leslie Southwick, a Republican appointee, found that even a mass illegal immigration is not an armed and organized invasion of the kind contemplated by the Alien Enemies Act.
SUMMERS: Right.
TOTENBERG: There's also the deployment of the National Guard and Marines in California to handle protests against immigration enforcement activities. A federal judge ruled just a few days ago that the president didn't have the authority to do that...
SUMMERS: All right.
TOTENBERG: ...At least not without the consent of the state's governor, which he definitely didn't have.
SUMMERS: All right. We have to leave it there. We are out of time. NPR legal affairs correspondent Nina Totenberg, thank you.
TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.
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