Trump Tariff Madness and the Three Branches of Government
George Will, the long-compromised Republican establishment conservative, has somewhat miraculously rediscovered his principles with aplomb during the Trump era, presumably due to the liberating effects of being forcibly ousted by the populist pogrom from his secure home within the party establishment. Exemplary of his octogenarian rejuvenation is his take on the Supreme Court’s 6-3 decision to strike down Trump’s global reign of terror by temper tantrum tariff. (And shame on the three dissenters in that decision, by the way.)
After lucidly outlining the central issue in this decision, namely the Roberts court’s “major questions doctrine” — which in sum stipulates that in order for an important constitutionally assigned power to be delegated by Congress to the Executive branch under any circumstances, the delegation must be stated clearly and explicitly in a law passed by Congress — Will proceeds to excoriate the three Republican-appointed judges in the majority (Roberts, Gorsuch, Barrett) for their stated reasons for striking down the tariffs. Specifically, as he explains, all three tie their decisions to the weakest reading of the major questions doctrine in such a way as to suggest that the only problem with Trump’s presidential tariff frenzy was the fact that the emergency powers law he was exploiting does not clearly and explicitly delegate taxing authority to the Executive branch — thus implying that Congress could, if it so desired, pass a law tomorrow granting the president such authority to create new taxes, and the problem would be solved.
Will’s takedown of Barrett gets right to the heart of the problem:
In a four-page concurrence responding to Gorsuch’s 46 pages, Justice Amy Coney Barrett, who has a knack for packing maximum constitutional wallop into minimum verbiage, said: “If the Constitution permits Congress to give the Executive a particular power, who are we to get in the way? Does the Judiciary really protect the Constitution by impeding the constitutional action of another branch?”
The answer to her second question is an emphatic “yes.” If the Constitution permits? The threshold question is: Does the Constitution permit this? This question cannot be answered without a strong nondelegation doctrine.
In other words, there is an issue at stake here which is far deeper than the mere procedural question of whether the law Trump was exploiting really says what he wants it to say. The more fundamental question is whether that law, or any law passed by Congress, ought to be permitted to say such a thing. That is to say, if the purpose of the Supreme Court is precisely to determine the constitutionality of laws — the conformity of a newly passed law to the limits and declarations of the country’s fundamental law — then is not the Court derelict in its own constitutionally assigned duties if it allows, and even expressly gives its blessing as Roberts, Gorsuch, and Barrett all did, for the most basic “major questions” of the U.S. Constitution, such as which branch is given “the power of the purse,” to be effectively stricken from the Constitution by the act of a Congress that has simply, for whatever reasons, decided to cede that constitutionally assigned authority to the Executive branch (or, in practical terms, to this or that particular president)?
To flesh this out more directly, the reason the Framers of the Constitution, in their wisdom — which though surely not infinite was nevertheless infinitely superior to that of any of the amoebae currently occupying the halls of any branch of the U.S. Federal Government — specifically included the authority of taxation (including tariffs, of course) among the enumerated powers of Congress, is that Congress, of the three branches, is the one most directly answerable to the People, whose money, after all, is what is at stake in all matters of national revenue. Every member of Congress — especially in the House of Representatives, whose occupants must face their constituents’ reassessment every two years — has the strongest personal disincentive to raising taxes, and will therefore do so only when he can appease the voters he represents with the strongest possible justification. These natural (i.e., self-preservational) cooling agents on congressional greed and overreach are exactly the considerations that the Framers were counting on to rein in federal excesses — to put the practical limits in “limited government.”
Therefore, granting Congress the legal and moral authority to cede this enumerated power to a branch of government less connected, and therefore less accountable, to the People, is granting it the authority to leap over or undermine the very essence of the limited republic the Framers designed, is it not? For it means not only treating the Constitution’s enumerated powers as mere suggestions rather than barriers; but further, by exploding those barriers, it permits the coordinating and unifying of the operations of the branches of government in ways that directly defy the whole republican bulwark of separate branches that are supposed to limit one another’s temptations to authoritarian overreach precisely by means of this very separation of powers. There are, by intention, things that only Congress can do, and thus no individual man (president) can usurp those powers so as to become more than a well-tethered third of the federal government. That intention — a system of law designed to limit the power of government over people’s lives — was the whole point of the Constitution, the whole thrust of the Declaration of Independence, the whole rationale of the American Revolution, was it not?
As Will observes, rightly mocking Justice Barrett’s pithy but pathetic rhetoric:
“Who are we to get in the way” of Congress divesting itself of powers? It is the justices’ job to police constitutional boundaries.
If defending the Constitution against threats from government action is the specific and defining power of the Supreme Court — which it is — then surely this has to mean refusing to grant Congress the non-existent (according to the Constitution) power to relinquish its own designated powers in such a way as to create the practical conditions for an authoritarian Executive branch, the mitigation of such threats being the entire purpose of the legal document the Court is tasked with upholding.
