Im-Politic: Why the Supreme Court’s Tariff Decision is an Epic Fail
Equal justice apparently isn't equal anymore.
In an interview with Al Jazeera English last Friday, I called the Supreme Court’s ruling on President Trump’s reciprocal and other tariffs its worst decision since it decided in 1896 that state-level racial segregation laws were perfectly fine as long as they were “separate but equal,” as their doctrine came to be known. (I did mistakenly say that the Plessy vs Ferguson decision applied to school segregation. In fact, it applied to all racial segregation.)
Full disclosure: I’m not a lawyer. But nothing I’ve seen in the past few days has changed my mind for this (partial) list of reasons.
>Chief Justice John G. Roberts Jr.’s majority decision claimed that the Trump administration “reads IEEPA [ the International Emergency Economic Powers Act of 1977] to give the President power to unilaterally tariffs that “are unbounded in scope, amount, and duration” (to quote the lawyers for the plaintiffs and a Federal Circuit Court ruling in August).
But as the Congressional Research Service has pointed out, according to the related 1976 National Emergencies Act, any such emergency “may be terminated by the President, by a privileged joint resolution of Congress, or automatically if the President does not publish in the Federal Register and transmit to Congress a notice stating that such emergency is to continue in effect after such anniversary.”
>Roberts actually proceeded to note that IEEPA did not grant “unbounded” authority after all. Specifically, he noted that “the only way of restraining the exercise of that power is a veto-proof majority in Congress” and that such a view, if credited, would “represent[] a ‘transformative expansion’” of the President’s authority over tariff policy and indeed—as demonstrated by the exercise of that authority in this case—over the broader economy as well.”
But here’s what Roberts is really saying: “IEEPA does authorize Congress to restrain presidential trade power, but such a step would be really hard to do.” To which any thinking and knowledgeable person would reply, “Then you’re saying that the fundamental veto authority granted by the Constitution to Congress is too weak and should be changed. If so, start the process for amending the Constitution accordingly.”
Similar counter-arguments of course apply to the Congressional alternative of passing a law expressly prohibiting IEEPA from imposing tariffs. It’s true that mustering veto-proof majorities in favor of this measure is probably impossible in this Congress. But so what? Opponents of the president’s trade policies can do their darndest to elect more receptive Congresses. And if they can’t, too bad for them.
>There’s the whole business of the majority insisting, in Roberts’ words, that “Based on two words separated by 16 others in Section 1702(a)(1)(B) of 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.”
In the first place, “cannot bear such weight” is nothing more than a pompous way of saying, I [we] don’t agree.”
In fact, substantively, this “bear such weight” argument …
Equal justice apparently isn't equal anymore.
In an interview with Al Jazeera English last Friday, I called the Supreme Court’s ruling on President Trump’s reciprocal and other tariffs its worst decision since it decided in 1896 that state-level racial segregation laws were perfectly fine as long as they were “separate but equal,” as their doctrine came to be known. (I did mistakenly say that the Plessy vs Ferguson decision applied to school segregation. In fact, it applied to all racial segregation.)
Full disclosure: I’m not a lawyer. But nothing I’ve seen in the past few days has changed my mind for this (partial) list of reasons.
>Chief Justice John G. Roberts Jr.’s majority decision claimed that the Trump administration “reads IEEPA [ the International Emergency Economic Powers Act of 1977] to give the President power to unilaterally tariffs that “are unbounded in scope, amount, and duration” (to quote the lawyers for the plaintiffs and a Federal Circuit Court ruling in August).
But as the Congressional Research Service has pointed out, according to the related 1976 National Emergencies Act, any such emergency “may be terminated by the President, by a privileged joint resolution of Congress, or automatically if the President does not publish in the Federal Register and transmit to Congress a notice stating that such emergency is to continue in effect after such anniversary.”
>Roberts actually proceeded to note that IEEPA did not grant “unbounded” authority after all. Specifically, he noted that “the only way of restraining the exercise of that power is a veto-proof majority in Congress” and that such a view, if credited, would “represent[] a ‘transformative expansion’” of the President’s authority over tariff policy and indeed—as demonstrated by the exercise of that authority in this case—over the broader economy as well.”
But here’s what Roberts is really saying: “IEEPA does authorize Congress to restrain presidential trade power, but such a step would be really hard to do.” To which any thinking and knowledgeable person would reply, “Then you’re saying that the fundamental veto authority granted by the Constitution to Congress is too weak and should be changed. If so, start the process for amending the Constitution accordingly.”
Similar counter-arguments of course apply to the Congressional alternative of passing a law expressly prohibiting IEEPA from imposing tariffs. It’s true that mustering veto-proof majorities in favor of this measure is probably impossible in this Congress. But so what? Opponents of the president’s trade policies can do their darndest to elect more receptive Congresses. And if they can’t, too bad for them.
>There’s the whole business of the majority insisting, in Roberts’ words, that “Based on two words separated by 16 others in Section 1702(a)(1)(B) of 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.”
In the first place, “cannot bear such weight” is nothing more than a pompous way of saying, I [we] don’t agree.”
In fact, substantively, this “bear such weight” argument …
Im-Politic: Why the Supreme Court’s Tariff Decision is an Epic Fail
Equal justice apparently isn't equal anymore.
In an interview with Al Jazeera English last Friday, I called the Supreme Court’s ruling on President Trump’s reciprocal and other tariffs its worst decision since it decided in 1896 that state-level racial segregation laws were perfectly fine as long as they were “separate but equal,” as their doctrine came to be known. (I did mistakenly say that the Plessy vs Ferguson decision applied to school segregation. In fact, it applied to all racial segregation.)
Full disclosure: I’m not a lawyer. But nothing I’ve seen in the past few days has changed my mind for this (partial) list of reasons.
>Chief Justice John G. Roberts Jr.’s majority decision claimed that the Trump administration “reads IEEPA [ the International Emergency Economic Powers Act of 1977] to give the President power to unilaterally tariffs that “are unbounded in scope, amount, and duration” (to quote the lawyers for the plaintiffs and a Federal Circuit Court ruling in August).
But as the Congressional Research Service has pointed out, according to the related 1976 National Emergencies Act, any such emergency “may be terminated by the President, by a privileged joint resolution of Congress, or automatically if the President does not publish in the Federal Register and transmit to Congress a notice stating that such emergency is to continue in effect after such anniversary.”
>Roberts actually proceeded to note that IEEPA did not grant “unbounded” authority after all. Specifically, he noted that “the only way of restraining the exercise of that power is a veto-proof majority in Congress” and that such a view, if credited, would “represent[] a ‘transformative expansion’” of the President’s authority over tariff policy and indeed—as demonstrated by the exercise of that authority in this case—over the broader economy as well.”
But here’s what Roberts is really saying: “IEEPA does authorize Congress to restrain presidential trade power, but such a step would be really hard to do.” To which any thinking and knowledgeable person would reply, “Then you’re saying that the fundamental veto authority granted by the Constitution to Congress is too weak and should be changed. If so, start the process for amending the Constitution accordingly.”
Similar counter-arguments of course apply to the Congressional alternative of passing a law expressly prohibiting IEEPA from imposing tariffs. It’s true that mustering veto-proof majorities in favor of this measure is probably impossible in this Congress. But so what? Opponents of the president’s trade policies can do their darndest to elect more receptive Congresses. And if they can’t, too bad for them.
>There’s the whole business of the majority insisting, in Roberts’ words, that “Based on two words separated by 16 others in Section 1702(a)(1)(B) of 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.”
In the first place, “cannot bear such weight” is nothing more than a pompous way of saying, I [we] don’t agree.”
In fact, substantively, this “bear such weight” argument …
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