Dem
47
GOP
53
It's kinda sad when America celebrates with relief what should be the unremarkable act of the United States Supreme Court upholding the Constitution. And yet, here we are.
Yesterday, in a 6-3 decision, the Court struck down Donald Trump's indiscriminate tariffs, which he unilaterally imposed under the International Emergency Economic Powers Act (IEEPA). Chief Justice John Roberts, writing for the majority, held "based on two words separated by 16 others in IEEPA—'regulate' and 'importation'—the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time. Those words cannot bear such weight."
Art. I, Sec. 8 of the Constitution gives Congress the "power to lay and collect Taxes, Duties, Imposts and Excises." The Court notes that the power to tax is an extraordinary one and cites Alexander Hamilton, who said that it is "the most important of the authorities proposed to be conferred upon the Union." And in case there was any doubt, the Court makes clear that a tariff "is a tax levied on imported goods and services."
Trump claimed that in enacting IEEPA, Congress meant to include tariffs among the tools a president could use to address emergencies involving foreign affairs. Trump had declared a national emergency under IEEPA based on two claims: (1) a drug influx from Canada, Mexico and China had created a public health crisis; and (2) trade deficits had harmed American manufacturing and "undermined critical supply chains." He used this declaration to impose tariffs on most Canadian, Mexican and Chinese imports and—to address the trade deficit—he also imposed duties "on all imports from all trading partners." The Court noted that the tariffs have been "modified" multiple times since they were first imposed and detailed the President's wild fluctuations in the rates and application of the tariffs.
The opinion states that the power of the purse is a "core congressional power" and one that cannot be delegated without clear and unambiguous language. And that language cannot be found in IEEPA. While the president has many tools under IEEPA to deal with the supposed emergency he declared, levying tariffs is not one of them. Note that the Court didn't examine Trump's emergency claims or whether tariffs are an appropriate response to those claims. The Court held only that Congress did not authorize a president to levy taxes through this particular statute. Associate Justice Brett Kavanaugh, in his dissent, however, helpfully reminded Trump that there are other statutes that allow him to impose tariffs, though those have strict limitations on duration and application.
It is interesting that Roberts takes pains to point out the expansive reach of Trump's claimed authority. "The president's assertion here of broad statutory power over the national economy is extravagant by any measure. And as the government admits—indeed boasts—the economic and political consequences of the IEEPA tariffs are astonishing." He concludes, "We are therefore skeptical that in IEEPA—and IEEPA alone—Congress hid a delegation of its birth-right power to tax within the quotidian power to 'regulate.'" So, for Roberts, there is a red line that even Republican presidents can't cross.
Importantly, the part of the opinion where Roberts tried to shore up the Court's hostility to Congress' delegation of authority to the executive branch failed to garner a majority of the Court. That means the holding of this case is NOT based on the so-called "major questions doctrine." Roberts used this section of the ruling to compare Trump's use of tariffs to Joe Biden's cancellation of student loan debt, which the Court nullified, as well as the Court's decision striking down OSHA's requirement that certain employees be vaccinated against COVID. He couches these decisions as "major questions" cases, which is that squishy term that, like "obscenity," the Court knows it when it sees it, especially if "it" took place under a Democratic administration. The only justices to join that part of the opinion are Associate Justices Neil Gorsuch and Amy Coney Barrett (and Gorsuch penned his own concurrence in defense of the major questions doctrine and criticized the female justices, all of whom suggested either narrowing the doctrine or not applying it). In Associate Justice Elena Kagan's concurrence, which was joined by Associate Justices Sonia Sotomayor and Ketanji Brown Jackson, she noted that the major questions doctrine is irrelevant here because ordinary rules of statutory interpretation are enough to support the result.
Everyone knew that Trump had misused the statute and violated the Constitution. The question was how far this Court would go in toting Trump's water. They've done their job here, but don't be fooled into thinking they won't keep expanding presidential powers when they can find a justification. They will likely overturn a nearly 100-year old precedent, Humphrey's executor, to sanction Trump's firing of members of independent boards, and will also finish off the Voting Rights Act just in this term. They've already let the President dismantle USAID and the Department of Education, cancel grants and usurp other Congressional powers. And even here, the Court notes that Trump has other laws available to him to impose tariffs.
And it's no mistake that the Court didn't address what happens to the money that's already been collected, which they allowed to happen many months ago by issuing a stay on the shadow docket of the lower court's preliminary injunction. No doubt they'll let that issue languish in the court system until long after Trump has left office. Then the next guy or gal, probably a Democrat, will be left having to clean up the mess, along with so many others Trump leaves behind.
In the end, the easiest way to make sense of this Court's jurisprudence is to recognize that the folks with the deciding votes (Roberts and Barrett, in particular) are devoted Reagan Republicans. That means they hate the same things that St. Ronnie hated—Congress, the federal bureaucracy, regulation, attempts to redress racial discrimination, the welfare state, etc. But they are extremely pro-business, just like the Gipper was, so messing around with the Fed and/or imposing tariffs willy-nilly are both a bridge too far.
Trump responded to his defeat like a petulant child. He said that the Trump-appointed justices who voted with the majority (Gorsuch, Barrett) are disloyal and their families should be ashamed of them. He also decreed that the Court has been "corrupted" by foreign influences. Rep. Jared Moskowitz (D-FL), who sits on the House Judiciary Committee, promptly, and quite correctly, responded to this on eX-Twitter: "As a member of the Judiciary Committee, if the President has evidence of foreign influence or intervention into our Supreme Court, he should release that immediately." We wish that reporters would decide, collectively, to hold the administration accountable for one of these wild claims, and to ask about it at every single press availability for weeks or months. We are going to be disappointed on this wish, of course.
Trump has many other tariff authorities he can use, and he's already used one of them. During yesterday's temper tantrum, he announced that he was imposing 10% tariffs worldwide, under the terms of Section 122 of the Trade Act of 1974. During this morning's temper tantrum, he upped that to 15%. The problem here, for the administration, is that anything beyond 150 days has to be approved by Congress. That said, Trump can also take Section 301 of the same act, Section 232 of the Trade Expansion Act of 1962, and Section 338 of the Tariff Act of 1930 for a spin, if and when the time comes.
The point here is that Trump's trade war is definitely not over. By exploiting (and often distorting) existing law to the extreme, and then by tying future tariffs (not to mention the tariff rebates) up in court, he might be able to keep this going for the rest of his term. And given that he, or someone in his inner circle, thinks that tariffs are manna from heaven, we see no reason to think he won't try it.
That means that the real issue here isn't so much the courts or the White House, it's Congress. Politically, it seems clear that Republicans are doing a secret happy dance that the tariffs were struck down. They are extremely unpopular and have driven down sales and harmed businesses. The port of Los Angeles is seeing the lowest traffic in decades, and other ports have also seen steep declines. Congress has the power to kill some tariffs (e.g., the brand-new 15% tariff levied this morning), and it could rewrite existing law to remove the undergirding of potential future tariffs.
Because the tariffs are so ill-advised, economically and politically, and because many Republican members of Congress are fiscal conservatives AND are worried about keeping their jobs, and because Trump gets lame duckier by the day (especially once primary season comes and goes), it is not impossible that the legislature will find its backbone. Yesterday, Speaker Mike Johnson (R-LA) said that the administration and Congress would "determine the best path forward" on tariffs. That is Johnson-speak for, "The president will call me and tell me what to think, and at that point I will know what my opinion is." But while the Speaker is completely subservient to the President, that's not true of every member of his caucus. Rep. Don Bacon (R-NE), who is retiring, wants to rein in the tariffs, and said he will vote accordingly. Rep. Thomas Massie (R-KY), who is already a Trump nemesis, hates tariffs, since he is a Libertarian cosplaying as a Republican. Those two, plus the Democrats, plus one more vote, and anti-tariff maneuvers can gain a majority. That is enough to yank Trump's authority under Section 122. Can such maneuvers gain a veto-proof majority, in both chambers? Maybe.
Our guess is that the Republicans in Congress let Trump have his 150 days, by which point the primaries will be over, and THEN will decide what kind of war they want to have. The more defectors there are, the harder it is for Trump to focus on any one of them. And again, once the threat of finding a primary opponent is moot, Trump has few weapons with which to punish apostates. It could get very interesting. (L & Z)