A pair of lawsuits before the United States Court of International Trade allege that the Trump administration overstepped its authority with the April 2 tariffs because the president has not established the requisite emergency to impose them without congressional approval.

In V.O.S. Selections, Inc., et. al., plaintiffs have asked the court to rule on whether, “a President, absent a clear delegation from Congress” may “unilaterally impose sweeping tariffs under laws never designed for that purpose.” The Constitution, according to the them, “gives a clear answer,” that is, “Article I vests Congress—not the President—with the power to ‘lay and collect Taxes, Duties, Imposts and Excises…”

In his April 2 Executive Order imposing the tariffs, President Trump relied upon a 1977 law, the International Emergency Economic Powers Act (IEEPA) for his authority and declared the following emergency:

[I] find that underlying conditions, including a lack of reciprocity in our bilateral trade relationships, disparate tariff rates and non-tariff barriers, and U.S. trading partners’ economic policies that suppress domestic wages and consumption, as indicated by large and persistent annual U.S. goods trade deficits, constitute an unusual and extraordinary threat to the national security and economy of the United States.

The lawsuits allege that although the, “IEEPA allows the President to impose sanctions in response to genuine emergencies” Trump’s moves are something more akin to “reorder[ing] the economy in response to long-term trends.” Both sides agree that trade imbalances, to the extent they constitute a threat to national security, are slow-moving phenomena. So those opposed to the president’s plan suggest that Trump ought to have considered that there is sufficient time for Congress to debate, deliberate, and enact legal countermeasures in response to them. They argue further that the IEEPA permits the president to, “investigate, regulate, or prohibit … transfers of credit or payments … involv[ing] any interest of any foreign country” but that tariffs, “unlike the foreign sanctions explicitly authorized under the IEEPA, are taxes paid by Americans.” In other words, if tariffs are taxes and the Trump administration is taxing Americans with tariffs, this would require Congress to exercise its constitutionally delegated authority.

On April 29, the Department of Justice filed a 66-page rebuttal to these arguments. It argues that the trade imbalances “have atrophied our nation’s domestic production capacity such that now, the United States military readiness and national security posture are compromised.”

Is that true? Can a nation’s military readiness be compromised by trade imbalances? Conventional wisdom holds that industrial capacity can be decisive in military conflict. It certainly played an important role in the American Civil War and in both World Wars. It does seem logical that if our most likely military rival, China, supplies our military with vital equipment, we might be at a disadvantage if hostilities ever break out.

While it’s true that the IEEPA never mentions tariffs, the Trump administration notes that the Nixon administration established that precedent by invoking the Trading with the Enemy Act (TWEA) to impose tariffs in 1971. It’s true that Nixon’s action took place before the IEEPA was enacted in 1977, but the two statutes are similar enough that the Trump administration believes Nixon’s tariffs are a legal precedent in this case. The lawfulness of Nixon’s tariffs were upheld in federal court, even though the TWEA did not expressly authorize tariffs. As the Trump administration argues, a tariff is just a form of regulating imports. Besides, under the statutes covering his emergency powers, Congress, not the courts, is the branch delegated the power to review and reverse these declarations.

It’s not obvious how the courts will rule on Trump’s tariffs. On the one hand, the court may uphold these tariffs applying the Nixon precedent and the court’s historic deference to the executive branch’s national security determinations. On the other hand, there is also a point to be made about the nature of the “emergency,” cited by the Trump administration. It may be better characterized as a slow-moving economic concern that could have been addressed by Congress. It’s worth considering whether we be comfortable with a Democratic president declaring a, “Climate Emergency,” or a “Misinformation Emergency,” as a way to impose tariffs and implement his priorities.

Nevertheless, early signs bode well for the Trump administration. The court declined to issue preliminary injunctions and/or restraining orders. That’s a departure from the pattern established by the dozens of court cases with activist judges halting so much of the Trump agenda. Additionally, the courts likely will not move quickly enough to prevent Trump from leveraging the tariffs into long term trade deals. Even so, Congress could step in at any time and attempt to overrule Trump’s actions. In any case, the future of Trump’s tariff agenda remains highly unpredictable.