Friday, the Supreme Court issued its long-awaited ruling on the dubious legality of Trump's "emergency" tariffs, which the President claimed the International Emergency Economic Powers Act (IEEPA) empowered him to levy:
A 6-3 Supreme Court majority on Friday struck down President Trump's sweeping emergency tariffs (Learning Resources v. Trump) in a monumental vindication of the Constitution's separation of powers. You might call it the real tariff Liberation Day.
It's hard to overstate the importance of the Court's decision for the law and the economy. Had Mr. Trump prevailed, future Presidents could have used emergency powers to bypass Congress and impose border taxes with little constraint.
As Chief Justice John Roberts explains in the majority opinion, "Recognizing the taxing power's unique importance, and having just fought a revolution motivated in large part by 'taxation without representation,' the Framers gave Congress 'alone ... access to the pockets of the people.'" [link removed]
I agree with Yaron Brook that the ruling, while imperfect, is very good news in that it upholds rule of law in the short term, and with David French that it cannot, alone, save our Republic:
During Trump's second term, I've likened the judiciary to the rear guard of a retreating army. A valiant delaying action can give the army a chance to reinforce, reorganize and strike back. But if the army can't strike back, then rear guards merely delay defeat.
The judiciary isn't perfect, but it is performing its core constitutional function. It is preserving the foundation of America's constitutional structure. But not even the Supreme Court can save Americans from themselves.
If we keep electing men like Trump, they will keep undermining that foundation, until it finally collapses.
One day that may well happen. But on Friday, the Supreme Court said not this day. On this day the presidency is stuffed back into its box. On this day the separation of powers prevails. And on this day the Constitution holds.
It is now our job to make sure that the Supreme Court did not stand in vain.
Those interested in legal analysis would do well to read Ilya Somin's piece about the ruling in The Atlantic, where one of the counsels in one of the three cases briefly explains the reasoning presented by the concurring and dissenting justices.
Yaron Brook discusses the ruling.
This Brook does as well in his commentary, embedded above, spending time delving into Gorsuch's opinion, which was the most devastating to the tariffs, as well as being about as good as one could expect in today's intellectual context.
I’m Rob Tracinski and I’m running for Congress. I wanted to offer a brief comment on the new Supreme Court ruling striking down Trump’s tariffs.
The issue here is not whether the tariffs are good or bad. I mean, they are bad. They’re a tax on imports that raises prices for consumers, for farmers, for small businesses. And the trade war they set off has been crushing the overseas markets for American goods, which hits farmers particularly hard. So: higher costs, fewer markets for our goods. None of this is a good idea.
But that’s actually not the issue here. The issue here is who gets to decide on the tariffs.
I like to point out how America’s Founders looked at this. When the British imposed a tax on tea, they didn’t argue about how big the tax should be. They argued about whether the British Parliament had a right to impose that tax without asking the permission of our own legislatures here in America.
“Who gets to decide” matters, it really does, very substantially. The Founders knew if the Parliament could impose any taxes they wanted—they don’t know the local conditions, they don’t know who this will help or hurt, and they don’t haveto know any of that, because they don’t answer to us. We didn’t elect the British Parliament. So taxes were being imposed on Americans by people who didn’t answer to American voters.
Something similar applies to the question today, which is whether the president can just impose tariffs whenever he wants—or whether, just as our Founders insisted 250 years ago, he has to go through the legislature, he has to go through Congress.
And when you ask the question like that, well, it kind of answers itself. Of course he has to go through Congress. It’s right there in Article I, Section 8 of the Constitution, that Congress has power over tariffs. And it’s there because it was written into the Constitution by the same people who participated in or supported the Boston Tea Party.
So I was very happy to see the Supreme Court rule to strike down Donald Trump’s unilateral, arbitrary tariffs.
Here is a very good passage from the concurring opinion by Justice Gorsuch:
For those who think it important for the Nation to impose more tariffs, I understand that today’s decision will be disappointing. All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason. Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions.
Side note: This is a very glamorized view of the process, but it’s still better than one man deciding everything.
Now back to Gorsuch:
And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.
Gorsuch is one of the conservative justices on the Court, and notice that this argument is kind of pitched to his fellow conservatives. Basically, he’s telling them to look forward to the day—which might not be so long from now—when all the power they want to give to the president is being exercised by President Gavin Newsom, or President Alexandria Ocasio-Cortez, or—insert your favorite bogeyman here. Bernie is too old now, or I’d use him.
And that really—as someone who has worked for conservative publications, who has known a lot of people in the conservative media space—what’s most extraordinary is that so many of them don’t have the presence of mind to project what happens a few years from now when power changes hands, as it always does. I’m the guy out here running as a Democrat, and I’m doing more to protect them from total retribution after the next presidential election than they are doing to help themselves. It’s just a vast mental failure, a collapse of the ability or willingness to think.
That leads us out to the wider context. This Gorsuch quote is great, but what is not great is that it needed to be said at all. He we are, 250 years after this country’s founding, and we have to be reminded of why we have a legislature.
There’s also the fact that this was not a 9-0 decision. The legal and constitutional issues are so clear-cut that this should have been a 9-0 decision, or better yet, it should not have been decided at all. There was a perfectly good federal court ruling striking down Trump’s tariffs, and the Supreme Court could have decided this ruling was good enough and said, no, we’re not going to hear an appeal on this, we’re going to let that ruling stand.
Instead, we got a 6-3 ruling, and we have this sort of wing forming in the Court with Justices Thomas, Alito, and Kavanaugh—the justices who are most partisan, who are most steeped in the Fox News Channel view of the world. Because the issues in this case are so clear, it’s a good test of whether these three will rule in favor of this president no matter how weak or non-existent the argument. And the answer is that yes—yes, they will.
And there’s another wider context. We have to understand how we got here on tariffs, and on many other issues.
Congress used to write long tariff bills where they hammered out all the details themselves and didn’t give the president any discretion. The last time they did this was in 1930 with the Smoot-Hawley tariffs—named after Smoot and Hawley, the two guys in Congress who were the main sponsors of the bill. But those tariffs were huge, and their impact was devastating—they helped set off the Great Depression. Like I said above, tariffs are a bad idea. So Congress responded to this disaster by saying, in effect, we will never trust ourselves with the tariff power again. Starting in 1934, they began writing legislation that gave the president all sorts of power to negotiate tariffs. But they did this mostly thinking that the president would be more pro-free-trade than Congress.
And because of this, we see Trump responded to the Supreme Court ruling by finding another law that grants the president a somewhat vague and expensive emergency power, and he’s claiming he can reimpose 10% tariffs under that law, or maybe 15% tariffs. He had to change his mind within the first 24 hours, because you know how businesses love that kind of uncertainty.
Now: It looks like the president has no more basis to impose tariffs under this new law than he did under the old one. So this is just pure defiance of the Supreme Court.
But it also reveals a bigger problem.
Over the years, Congress has sloughed off a lot of its power to the executive, and not just on trade. There are a whole bunch of “emergency” powers we’ve given to the president that are very broad and vague. They presume that the president will invoke these powers in good faith and in consultation with Congress, and not do it just because he’s mad at not getting his way.
But really, it was never a good idea to give the president that much power and just hope he wouldn’t use it as an all-purpose escape hatch from the Constitution. Which is exactly how Donald Trump is using it.
If elected, I would propose a law removing all emergency powers from the president. And if this leads to any legitimate problems, we can decide to add back some presidential flexibility later, but with very specific criteria and limitations. Or maybe Congress can just get off its duff and pass actual legislation to deal with these problems, instead of expecting the president to do it for them.
And so we won’t be at the mercy of whatever the president decides at any moment is an emergency. And we can avoid a lot of our current chaos.
The courts can only fix some of this, as they tried to do in this ruling. But we shouldn’t wait for them, or rely on them. The United States Congress has to fix the rest.
And that, very simply, is my agenda and why I’m running. Instead of having one guy making all the decisions and changing his mind twice a day, we need to restore the power of Congress. We need to bring reasonable debate and certainty and sanity to how our government is run.
That’s what I’m asking you to vote for.
Support my campaign so we can take this fight to the US Congress!
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