Harvard Law Review Examines Judicial 'Fact Avoidance' in Presidential Power Cases
The Harvard Law Review has published an essay titled 'Fact Avoidance' by Shalev Gad Roisman, which analyzes a judicial tendency to resolve cases involving presidential power solely on interpretive grounds, thereby sidestepping a review of the factual predicates underlying the President's actions. The essay highlights two recent Supreme Court cases, *Learning Resources, Inc. v. Trump* and *Trump v. Illinois*, as examples. In *Learning Resources*, President Trump invoked the International Emergency Economic Powers Act (IEEPA) to impose tariffs, claiming an 'unusual and extraordinary threat.' In *Trump v. Illinois*, President Trump sought to deploy the National Guard, asserting an inability to 'execute the laws' with regular forces. In both instances, the Supreme Court focused on whether President Trump's interpretation of the statutes was correct, rather than evaluating whether the factual conditions required to trigger the delegated power were actually met. For example, in *Trump v. Illinois*, a district co...