Maybe Both Parties Are About to Embrace the Separation of Powers

Probably not, though.

I. False Truths

President Trump had this to say on Truth Social on Thursday:

The U.S. Court of International Trade incredibly ruled against the United States of America on desperately needed Tariffs but, fortunately, the full 11 Judge Panel on the U.S. Court of Appeals for the Federal Circuit Court has just stayed the order by the Manhattan-based Court of International Trade. Where do these initial three Judges come from? How is it possible for them to have potentially done such damage to the United States of America? Is it purely a hatred of “TRUMP?” What other reason could it be?

I was new to Washington, and it was suggested that I use The Federalist Society as a recommending source on Judges. I did so, openly and freely, but then realized that they were under the thumb of a real “sleazebag” named Leonard Leo, a bad person who, in his own way, probably hates America, and obviously has his own separate ambitions. He openly brags how he controls Judges, and even Justices of the United States Supreme Court — I hope that is not so, and don’t believe it is! In any event, Leo left The Federalist Society to do his own “thing.” I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations. This is something that cannot be forgotten!

With all of that being said, I am very proud of many of our picks, but very disappointed in others. They always must do what’s right for the Country! In this case, it is only because of my successful use of Tariffs that many Trillions of Dollars have already begun pouring into the U.S.A. from other Countries, money that, without these Tariffs, we would not be able to get. It is the difference between having a rich, prosperous, and successful United States of America, and quite the opposite. The ruling by the U.S. Court of International Trade is so wrong, and so political! Hopefully, the Supreme Court will reverse this horrible, Country threatening decision, QUICKLY and DECISIVELY. Backroom “hustlers” must not be allowed to destroy our Nation!

The horrific decision stated that I would have to get the approval of Congress for these Tariffs. In other words, hundreds of politicians would sit around D.C. for weeks, and even months, trying to come to a conclusion as to what to charge other Countries that are treating us unfairly. If allowed to stand, this would completely destroy Presidential Power — The Presidency would never be the same!

This decision is being hailed all over the World by every Country, other than the United States of America. Radical Left Judges, together with some very bad people, are destroying America. Under this decision, Trillions of Dollars would be lost by our Country, money that will, MAKE AMERICA GREAT AGAIN. It would be the harshest financial ruling ever leveled on us as a Sovereign Nation. The President of the United States must be allowed to protect America against those that are doing it Economic and Financial harm. Thank you for your attention to this matter!

A few thoughts:

1. It is not a judge’s job to “do what’s right for the Country,” as narrowly construed by the policy outcomes of the decisions they hand down. That is the job of lawmakers and the president. It’s a judge’s job to make sure the lawmakers and the president are doing what they view as “right” within the legal bounds.

2. All of the reasons to impose tariffs that Trump is describing here — “Trillions of Dollars” pouring into the country; “having a rich, prosperous, and successful United States of America” — sound great! But that doesn’t mean they fit the legal reasoning that Trump is required to meet according to the International Emergency Economic Powers Act, the law he used to invoke them. In fact, revealingly, Trump’s stated reasons in the social post were notably somewhat distinct from the rationale he laid out under the IEEPA, which was to respond to national emergencies caused (in his view) by drug trafficking and trade deficits. In this way, Trump is bashing the judges for supposedly acting politically — while also calling on them to make their decisions based on political and economic outcomes, rather than on reasoning based in the law.

3. The process that Trump mocks for approving tariffs (going through Congress) just so happens to be the exact process for approving tariffs outlined by the Constitution. “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises,” says Article I, Section 8. It does not mention any exception for occasions when the legislative process might involve “hundreds of politicians” and a timespan of “weeks, and even months”; in fact, the Framers designed the legislative process to be exactly that deliberative, so that public policy would result from compromises between a multitude of elected representatives, instead of just the will of one individual.

4. Trump then adds that judges reviewing whether his tariffs under the IEEPA fit the legal bar set out by the IEEPA would “completely destroy Presidential Power — The Presidency would never be the same!” It seems unlikely that doing so would be such a grave threat to the norms of the presidency, since only one president (Trump) has ever imposed tariffs under the IEEPA.

5. “Radical Left Judges”? Of the three judges on the U.S. Court of International Trade who ruled against Trump’s tariffs, one was appointed by Barack Obama. One was appointed by Ronald Reagan. And one was appointed by Trump himself (this appointee was a Democrat, but presumably not a “Radical Left” one). Say what you will about the Federalist Society (and Trump had quite a bit to say in this post), it is not a “Radical Left” organization.

6. According to the Court of International Trade, the president of the United States is “allowed to protect America against those that are doing it Economic and Financial harm.” Just not under IEEPA. Helpfully, the judges flagged for him an alternative law, Section 122 of the Trade Act of 1974, he could use to impose tariffs in response to trade deficits. That law only sanctions tariffs up to 15%, which can only last up to 150 days. But that, according to the judges, is the only tool Congress gives the president to address trade deficits with tariffs.

II. Flip Flops

If the Supreme Court ultimately strikes down Trump’s tariffs, it will likely be celebrated by many Democrats, even though the justices will very possibly rely on two doctrines that were decried by Democrats in the Biden era: the Major Questions Doctrine (the idea that the executive branch should only be able to take actions with major national significance if it has clear congressional authorization) and the Nondelegation Doctrine (the idea that Congress can’t delegate away powers explicitly given to the legislative brach by the Constitution).

The U.S. Court of International Trade tariff ruling is also the latest decision in recent months to question a Trump action based on his invocation of an emergency or wartime power, even when judges have expressed skepticism about whether such an emergency exists. (Trump’s use of the Alien Enemies Act, which can only be invoked in case of a war or invasion by a foreign power, is another such example.)

Once again, any Democrats who cheer anti-Trump rulings on this basis will be executing a 180-degree turn. The party didn’t seem to mind presidential invocations of emergency powers when it was President Biden who tried to use them to cancel student loans or block evictions, both of which the Supreme Court also prevented.

Perhaps the two parties’ experiences during the Biden and Trump eras — trying to expand executive power, being rejected by the courts, and decrying it when the other side tries to do the same — will lead to a bipartisan embrace of the separation of powers. Now that both parties have seen what it is like to be have to go court to block presidential policies, maybe they will call a truce, together embracing theories that empower Congress (where they both share power) as the primary policymaking branch, instead of the executive, an unreliable place for either to store their faith, since they will only control it half the time (and judges so frequently block the branch, anyway).

I’m not particularly optimistic.

On Friday, the Supreme Court temporarily allowed the Trump administration to revoke Temporary Protected Status given to more than more than 500,000 migrants from Cuba, Nicaragua, Venezuela, and Haiti.

This decision will cause enormous consequences for those migrants, who entered the U.S. with permission from the government, and for the American economy, but from a legal standpoint, the ruling essentially allowed one president (Trump) to reverse the policy of another (Biden).

Once again, this shows the faultiness of making policy through presidential fiat. It’s the exact reason — just switching the names — why I’ve said that Republicans will regret advancing so much of their agenda through executive orders: it will be vulnerable to reversal by a successor. That is the case whether it’s Trump imposing tariffs that the next Democratic president could reverse, or Biden protecting immigrants who the next Republican president could deport.

Top Democrats quickly condemned the Supreme Court decision, but, of course, they will use the same legal pathways to reverse Trump actions once they regain power. If this temporary status would have been granted to immigrants by Congress — instead of, once again, by invoking an emergency power that, in some cases, presidents have simply been repeatedly extending since 2001 — it would have been much more difficult to revoke. (“Hundreds of politicians” would have had to “sit around D.C. for weeks, and even months,” after all.)

But instead, the Biden administration went through executive action, and so, just as with the many Trump actions that will one day be fed to the wood chipper, the next president was able to undo an action by his predecessor.

Live by executive power, die by executive power. One day, surely one of the two parties will notice that this keeps happening; eventually, maybe, one of them will try to seek an actually permanent solution to the problems they decry.