Remember former Perkins Coie lawyer Bradley Datt, the ex-Perkins Coie litigator whose post-Charlie Kirk assassination Facebook Facebook entry began, “Charlie Kirk got famous as one of America’s leading spreaders of hatred, misinformation and intolerance.The current political moment—where an extremist Supreme Court and feckless Republican Congress are enabling a Republican president to become a tyrant…”? The firm correctly fired the jerk, but such worthies as Unethical Website “Above the Law” and a lot of my Trump Deranged Facebook friends endorsed his “extremist Supreme Court” and “tyrant” analysis.
The U.S. Supreme Court just confirmed a major constitutional limitation on presidential power by striking down the sweeping tariffs that President Donald Trump imposed in a series of executive orders. By a vote of 6-3, the justices ruled that the tariffs exceed the powers given to the President by Congress under a 1977 law providing him the authority to regulate commerce during national emergencies created by foreign threats.
The opinion is here; analysis is everywhere, but what I care about right now is that when the centerpiece of the President’s economic program and foreign trade policy was before the Supreme Court, the alleged “radical” Justices did not rubber stamp it and did not “bend a knee,” but rather, as they are sworn to do, followed the law and the Constitution and ruled that President Trump had exceeded his powers. Three of the supposedly “radical” justices (if you’re not willing to distort the law in the direction the Axis favors, you’re radical), Roberts, Gorsuch and Barrett, joined with the three lock-step progressive DEI Justices (a black woman, a lesbian, and the “Wise Latina”). They are the ones who apparently make up their hive mind on cases before they even read the briefs based on what Democrats want, to foil the Republican POTUS. Fortunately, the other six Justices have some integrity
Because, you see, Trump isn’t a “king,” and the system works, just as the balance of power among the branches of government is supposed to.
Ethics Alarms 
I do agree that one cannot say that Trump’s 2 appointees are his lackeys. I do think the three should be consistent when they rule a given way having given consideration to future effects of the ruling in other cases. The very argument of Dreamer EO is based on the idea that massive deportations of children who were illegally brought to the US and grew up here and having no real connections to their country of birth would cause significant harm to these children and the economy.
Perhaps the IEEEP was not the way to go but there are other laws on the books that give the president the latitude to implement some tariffs. And as expected he has begun that process.
I read the decision and the crux of the issue was that it did not specifically say the president could use tariffs to “regulate” trade policy. What it did say was that he could limit imports or ban them outright instead of taking a more market based approach.
What the court did was to create the conditions for a bigger trade war if trade embargoes are the only avenues available to curtail dumping or to prevent some of our adversaries from implementing strategic policies to put American companies out of business through the use of forced labor in the foreign country. It is not an unreasonable stretch of the imagination to think that if a president can “regulate” trade and even ban imports to effect political policies for the benefit of the nation then tariffs – while not specifically mentioned – should be considered a means of regulation.
I would also like Roberts, Gorsuch and Coney to explain how the treasury is to facilitate refunds of said tariffs if the Democrats have long said the tariffs were a tax on Americans. Were we all supposed to save out receipts to prove what we bought. Giving refunds to importers who passed some or all of the costs along to buyers seems to me to be unjust enrichment. Perhaps Trump could have the Treasury send a check to every legal household in the US just before the mid terms.
I wish the Trump lawyers had cast the tariffs as having been imposed under some other provision from the start. There seem to be a number of perfectly viable alternatives. Personally, I think a court could find imposing tariffs is included within regulating trade. It’s less stringent than completely banning imports.
It’s not SCOTUS’s job to solve Congress’s problems. The Court was out of line when it composed the Miranda warning. It says what the law is, and does not make new laws on its own. That was the Left’s Warren Court distortion. Only rarely, as in Bush v. Gore, when there is a genuine train wreck, does SCOTUS have to step in take change.
Again, whether the decision was correct or not doesn’t change the point. The Court as constituted is not and has never been a rubber stamp for the President.
It should be interesting to see what the remedy will be. I’m guessing the administration will impose tariffs under some other authority and sweep the money held into the payment of those new tariffs. Will this case be sent back to Judge Boasberg in the D.C. Circuit?
I see this as interpreting law not making it. IEEEP is law the court just interpreted it to say that imposing tariffs exceeded the authority that was delegated by Congress. Three other justices saw the issue differently. To only say this was the only correct decision would be to opine that Alito, Kavanaugh and Thomas were rubber stampers for Trump. That is an opinion I do not share.
There is a possibility that Roberts, who is very concerned about the image of the court, chose to side with the plaintiffs for the very reason that choosing not to would cause the progressives to say they were mere rubber stamps for Trump. My opinion is this is a very real possibility. Roberts decisions in the past such as the requirement to buy health insurance because he decided that it was a tax is an example of his form of judicial activism. Deciding cases based on protecting the court’s image is fine and dandy but it is just as damaging as making decisions not based on the law but on policy.
At this point, the IEEP is either rendered toothless because Congress will not act with any immediacy to a threat or that this president and future ones will have to embargo other nations goods or screw our own producers. We are already doing that with Iran, North Korea, Russia and others.
I am also interested in how the idea that Congress gives the National Park Service to determine the amount of an entrance fee it can collect to allow users of parks to enjoy the benefits of the assets when Congress must determine how much the Executive branch can charge to foreign producers to access American consumers.
The Federal Lands Recreation Enhancement Act (FLREA) enables the National Park Service and other federal agencies to collect recreation fees and to retain fee revenues at the site collected in order to improve visitors’ experiences across the nation. Your Fee Dollars at Work (U.S. National Park Service)
There is no upper boundary on the per capita fee or the total amount collected Nor is there any specific appropriation for the proceeds that are retained by the NPS. I personally favor this method because it directs resources to the benefit of those choosing to take advantage of the service and does not require specific legislation proffered by a special interest group. Yet it would seem that this legislation would run afoul of the Constitution because all spending must originate in the House.
It would seem to me that tariffs and entry fees are a form of tax like cigarette or liquor taxes. You can avoid the tax by not consuming the product. The same is true of tariffs which is exactly why they and other “sin” taxes are imposed. If there are too few substitutes for needed goods then that is an issue that Congress should address.
For those who believe that tariffs distort the market I would say that government subsidized businesses distorts markets. So too does forced labor. Unless all nations agree to absolutely no tariffs and all have the same environmental and workplace safety and business taxes then the notion of market distortions from tariffs should fall on deaf ears.
Tariffs are no more distorting than forcing the US to adopt draconian environmental policies for some perceived global benefit while exempting the worlds largest polluters giving them an economic advantage that allows them to capture a greater market share in the US, it seems to me that consumers of such products should shoulder the costs of buying products that are produced in areas that contribute to environmental degradation.
Well done, Chris. Kias and Hundais are basically built by the nation of South Korea. Exporting them to the U.S. is dumping. Same with LG electronics.
Hyundai has plants in South Carolina and I would not consider Korea dumping which means the government is providing a subsidy designed to drive domestic producers out of business in order to give their producers monopoly power. We can state that precursor products for pharmaceuticals have been subsidized heavily by China and has effectively eliminated any other global production for antibiotics. Steel is another intermediate good subsidized by China. We are just beginning to reclaim our competitive position semi- conductors thanks to Trump. This has strategic implications because should China choose to invade Taiwan we would be forced to defend them. Theoretical pure comparative advantage does not exist in a world of individual nations with their own agendas. The concept of real free trade is an illusion.
To answer the question posed in your headline, “Oh, hell no.”
The tarrifs are a weird intersection of contradictions. Many union guys like tariffs because they believe in protects American manufacturing jobs. People who like the abstract idea of “made in America” also like them. Then, you have more traditional economists and libertarians who think they interfere with free trade. So, in a weird way, some of the left like the tarffis, and some of the right don’t.
Then, you have people celebrating Trump being blocked just because they hate him and like seeing the courts go against him on anything, though these sample people have denouncing the legitimacy of the Supreme Court since Roe was overturned. There are many strange bedfellows here.