Let’s hope that Washington Post columnist Jason Willick is correct in writing that Trump’s tariffs are in legal trouble. Three slices:
Eight of the 11 judges on the Federal Circuit panel were appointed by Democrats, including the two quoted above, so its eventual ruling won’t necessarily predict how the conservative-leaning Supreme Court will see the issue when the losing side appeals. But if the courts do eventually ratify the Trump administration’s position, it wouldn’t be an exaggeration to say that a key premise of the Constitution will have been inverted.
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There appear to be three reasons so many smart people are nonetheless discounting the magnitude of the legal threat to Trump’s tariffs. The first is the perception that the Supreme Court favors executive power, and it’s true that Trump’s executive-power claims have been on a winning streak at the high court in recent weeks. But there is a profound difference between presidential power over the executive branch — the so-called unitary executive theory — and presidential power to reach into the other branches.
This court wants to protect core presidential powers, such as the power to remove subordinates, from interference. By the same token, it should want to carefully guard core congressional powers, such as the power to regulate commerce, from usurpation by the executive.
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Republicans might want to be careful about carving out a zone of excessive deference to presidents who claim “foreign affairs” power to compel behavior by people and entities in the United States. Could a Democratic president impose Green New Deal policies and cite international climate diplomacy to win a pass from judges? What if the president claimed public health regulation was integral to national security and foreign affairs, since viruses cross borders?
On Thursday morning, attorneys representing the administration stood before a panel of federal judges in Washington, D.C., to defend the President Donald Trump’s use of emergency economic powers to levy tariffs.
By Thursday evening, however, a new executive order seemed to undermine the legal basis for those tariffs. With the enforcement of some tariffs postponed until early October, it’s becoming ever more difficult to believe that the president is responding to “an unusual and extraordinary threat.”
There have been reports all over of Immigration and Customs Enforcement raids in workplaces—restaurants, construction sites, farms. In a June ICE raid at an Omaha, Neb., meatpacking plant, more than 100 employees suspected of using false IDs were taken away. The owner of the plant told the New York Times that some of them had been with him for decades—they were “salt-of-the-earth, incredible people who helped build this company.”
The administration believes its toughness delivers a message—don’t come here illegally—and of course it would. But there are other ways to deliver it. Donald Trump’s presence alone has delivered it, and the border is pretty much closed. In these raids the administration is making a grave moral and political mistake.
The American people want criminals, thugs and abusers in the country illegally thrown out, full stop. But workers who are living constructive lives, who are contributing, who help keep America up and operating each day? No.
You can’t help but grow smarter and wiser by reading – and believing – Arnold Kling.
Now here’s a development that no one could reasonably have foreseen!
