The Supreme Court has ruled that President Donald Trump’s “emergency” tariffs are unconstitutional.
If we were inclined to keep the republic that Ben Franklin and his colleagues imparted to us, that would be that. Trump would concede that the Constitution means what it says when it grants Congress—and Congress alone—the “power to lay and collect taxes, duties, imposts, and excises.”
Congress, meanwhile, would reclaim its power. It could use it in one of two ways: either giving the president the tax on Americans he so craves, or declining to do so. Either way, in the words of Justice Neil Gorsuch, it would “tap the combined wisdom of the people’s elected representatives, not just that of one faction or man.” How quaint.
Ideally, everyone would grant that there is some virtue in preserving the basic elements of a republican system: that is, a system in which elected officials have certain limited and enumerated powers granted through the Constitution. And any power not explicitly granted to one branch of the government or another would be reserved for the people or the states, respectively.
But, alas, I fear that few in Washington are all that interested in keeping this kind of republic. And so now we wait to see how cute the president tries to get.
Getting cute.
Two centuries of trade research have shown Adam Smith to have been correct when he declared, “Nothing, however, can be more absurd than this whole doctrine of the balance of trade.” Trump has evidently weighed this research and rejected it. And he’s already shown that he’s not inclined to wait for Congress to delegate tariff powers to him.
Though the Supreme Court ruled that he could not use the International Emergency Economic Powers Act of 1977 (IEEPA) to levy tariffs, there are other statutes that allow the president limited tariff authority. On Friday—mere hours after the court ruled—he signed an executive order imposing 10 percent tariffs on the entire world under Section 122 of the Trade Act of 1974. A few hours later he thought better of it and raised these rates to 15 percent.
Section 122 allows him to impose across-the-board tariffs of up to 15 percent to address “balance of payments” issues. Never mind that the balance of payments deficit is currently zero. And never mind that these Section 122 powers were designed “to prevent an imminent and significant depreciation of the dollar in foreign exchange markets.” This is not about to happen. And, ironically, Trump has long sought depreciation of the dollar. These Section 122 tariffs, however, can only last 150 days. After that, he would need to turn to some other authority.
Next, he might claim that Section 301 of the Trade Act of 1974 permits him to impose tariffs on any country that has engaged in “unreasonable” or “discriminatory” trade practices. What is an unreasonable or discriminatory trade practice? You might think it is a “practice,” an actual policy adopted by another government. But in Trump’s mind, it is unreasonable any time Americans choose to buy more from the citizens of another country than those citizens buy from us. That, after all, is how he arrived at a 46 percent “reciprocal tariff” on goods bought from Vietnam even though the Vietnamese government imposes only a 9.5 percent duty on goods bought from the US.
In any case, a faithful reading of the statute would necessitate a careful and lengthy investigation by the U.S. trade representative before any tariff could be imposed. But Trump could get cute with that too, ordering an expedited and cursory analysis. We’ll have to see how far the courts let him get with that.
Next, he might try to use Section 232 of the Trade Expansion Act of 1962. This allows tariffs on goods that pose a threat to the national security of the United States, but requires a careful Commerce Department investigation into what constitutes a threat. Does Europe’s reluctance to hand over Greenland constitute a threat? Secretary Howard Lutnick’s Commerce Department may well see it that way. Don’t forget that last October, Trump imposed an additional 10 percent tariff on Canadian imports—citing IEEPA authority—because a Canadian premier had aired a commercial featuring Ronald Reagan saying some critical things about tariffs.
Speaking of Greenland, Trump never bothered to cite any authority for his threatened tariffs against Denmark, Norway, Sweden, France, Germany, the U.K, the Netherlands, and Finland for their refusal to let him annex an ally’s territory. So, he may simply try to impose tariffs without any authority. Cute.
The origins of an unbound presidency.
What is wrong with cute? Why should we care? Our duly elected president seems to genuinely believe in tariffs. It may be the one position he has consistently held throughout his decades as a public figure. And voters overwhelmingly chose him in 2024. Don’t they deserve to see their democratically selected policies enacted?
For decades now, there have been two unsatisfactory answers to these questions.
The first, supplied by progressives operating in the tradition of Woodrow Wilson, is that cute is fine. Wilson thought that “[t]he makers of the Constitution constructed the federal government upon a theory of checks and balances … but no government can be successfully conducted upon so mechanical a theory.” Rather than think of the government as a machine, he preferred to think of it as a living being, and “[n]o living thing can have its organs offset against each other, as checks, and live.”
Wilson was motivated by an outsized view of his own intelligence. Five years before he ascended to the presidency, he wrote, “The President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit.”
If this sounds familiar, recall that Trump recently told the New York Times that his power is limited only by “My own morality. My own mind. It’s the only thing that can stop me.”
But long before it captured Trump’s imagination, Wilson’s vision of an unbounded presidency stirred the imagination of the left. In an unprecedented exercise of power, Wilson issued more than 1,800 executive orders, nationalized railroads, and imposed price controls. He also segregated the federal labor force, suppressed free speech, and rounded up thousands of suspected socialists, but those achievements of the progressive era are less celebrated by today’s modern progressives.
The unbounded presidency also inspired Franklin D. Roosevelt to close banks, to confiscate gold, and to intern Japanese Americans via executive order. It gave President Barack Obama, frustrated by Congress’ opposition to his agenda, the courage to declare in 2014: “I’ve got a pen, and I’ve got a phone.” And it gave President Joe Biden the notion that he could cancel up to $430 billion in debt owed to the American taxpayers without bothering to seek Congress’ approval.
The Constitution, ineptly defended.
The great 19th-century French economist Frédéric Bastiat once warned that “the worst thing that can happen to a good cause is, not to be skillfully attacked, but to be ineptly defended.” Which brings us to the second answer to what’s wrong with cute.
Each time a Democrat asserted unbounded presidential or governmental power, there was almost always a Republican there to counter it. Obama’s 2014 pen remarks were especially successful in rousing Republican ire.
House Speaker John Boehner declared, “I would remind the president he also has a Constitution and an oath of office that he took” while Sen.Ted Cruz lectured: “‘I have a pen, and I have a phone,’ is not how laws are made under our Constitution. A strong president governs by consensus and persuasion, not with a pen and a phone. Americans deserve a President who will work in good faith with their elected representatives to follow the law of the land and to pass laws that reflect the will of the people.”
These are stirring statements. But the Constitution would not be so ineptly defended if Republicans could muster the courage to repeat them today to their own man.
To his credit, Cruz has often criticized the wisdom of Trump’s tariffs. But so far, he hasn’t brought himself to challenge the constitutionality of them.
His newfound reticence is nothing compared to House Speaker Mike Johnson, however. In January, Johnson declared: “I have no intention of getting in the way of President Turmp and his administration. … He has used the tariff power that he has under Article II very effectively.”
Huh? Which Article II power is he talking about? Does he think our keyboards lack a Ctrl-F?
A better defense.
It is clear now that many Republicans saw constitutional fealty as a nice talking point, a way to skewer Democrats for their unpatriotic rejection of the American founding.
But it appears that some Republicans’ own constitutionalism runs about as deep as Trump’s understanding of economics. They favor the Constitution when it thwarts the Democrats. They favor it because it is old and vaguely patriotic. Its antique and loopy cursive make for a beautiful backdrop for a speech. Like the flag itself, it’s the kind of thing you can hug (awkwardly). But it isn’t the kind of thing you think about.
But let’s think about it.
Few people thought as clearly or as thoroughly about the wisdom of constitutions as the late political economist James Buchanan. When talking about constitutions, the 1986 Nobel laureate liked to invoke Ulysses tying himself to the mast. Ulysses didn’t tie himself to the mast because he wanted to embarrass the Trojans. Nor did he do it because he wanted to inspire his men or remind them of their patriotic forefathers.
He did it for far more practical reasons. He knew that he would be tempted by the siren’s song. He knew he would go mad with lust, and he wanted to stop himself.
And so it is with political power. Government is not, as former Rep. Barney Frank once naively put it, “the things we choose to do together.” We do all sorts of things together. We start businesses together. We play softball together. We fish, and we pray, and we get drunk at concerts together. But none of those things is government.
When we form governments together, we assert the power to legitimately coerce our fellow citizens. No one can make you join the softball league. But government can make you pay your taxes, buy health insurance, or register for the draft. Try selling loose cigarettes on a Staten Island sidewalk and men with guns may stop you.
Frank had it exactly backward. Government isn’t what we choose to do together. It’s what we say you don’t have a choice in. Like paying your taxes!
Which brings us back to the Supreme Court’s decision. The framers understood that the power to tax is the power to destroy. And so they decided not to give that power to one man. After all, he might wake up one day and get offended by a TV commercial featuring a (more) popular Republican president. Or he might decide that a Swiss politician rubs him the wrong way. Those would be silly, arbitrary, and capricious reasons to coerce money from Americans.
So, the framers wisely gave the power to tax to our Congress, imperfect as it may be. They made it difficult for Congress to exercise this power—requiring legislation to pass both houses and constituting each house differently—because they wanted to ensure that this power wasn’t abused.
But the system works only if we take the Constitution and our commitment to republican government seriously. The Constitution is not, as progressives in the Wilsonian mold assert, an antiquated document. Nor is it, as some Republicans seem to think, a prop.
We may yet keep our republic if we can resist the urge to get cute.