Yesterday, I listened to the Supreme Court’s oral arguments on Trump’s tariffs and found the Justices’ questions chilling. You should too1.
Very basically, the lawsuits challenging the tariffs say that Trump did not have the power to unilaterally impose tariffs. But wait, said the administration’s attorney, Solicitor General Sauer, there is a law, the International Economic Powers Act or IEPA, which gives the President the power to “regulate” international trade in an emergency. I know, your eyes are already glazed, this sort of thing is why we all are happy lawyers exist and hope our children won’t go on to become one. But its important, your world being free fair and peaceful in ten years depends on how we handle this today, so please bear with me.
The oral argument boiled down to two important issues. First, whether the statute’s grant of the power to “regulate” means the power to impose tariffs, and second, if it did, if the power to impose tariffs is such a big deal that Congress can’t give up that power to the President without more guidance (and clear intent to do so). The Justices, like adorable children delivering lines from Shakespeare without having the slightest clue what “season of discontent” actually means, entirely bought into this framing. That is absolutely terrifying, at least as much as hearing your 10 year old dramatically explain that Macduff was born by c-section, and so never crawled out a vagina. That was the sense I got from all 9 justices yesterday, a bunch of people talking about something you are worried will scare them senseless, but which you slowly realize they only understand in the sense that, when asked, they are ready to read off their lines again. In children, that realization actually quite lowers the blood pressure. In the main bulwark of our democracy, it has a somewhat opposite effect.
The Trump administration has declared these tariffs will raise $4 trillion. Importantly, in fact the whole point, this is enough money to outfit a not so small army. Our founders, for extremely good reason, were very skeptical of one man, or possibly a woman eventually (good one, Jefferson2), having total control over an army. They also were extremely skeptical of military command by committee. In an emergency like war, you want a clear command structure, singular vision, and a president who can fire people who are lying or incompetent. Say what you will about our founders, they were extremely smart, so to solve this conundrum, they gave congress the power of the purse, what we today would call the bank account.
The whole idea is that if only Congress can raise taxes, 1) armies tend to stop fighting if they don’t get paid, 2) even Elon Musk’s checking account would struggle to pay an army for very long, and therefore 3))the President could remain commander in chief and fulfill our nation’s pretty central objective of not losing wars, while still depending on Congress, and through them, on you, to actually keep any soldiers in his army. Like declaring war, it’s a delicate balance crucial to our democracy. If the President declares martial law in DC or Chicago and congress isn’t behind him, they simply stop funding the government and wait for all the President’s men to go home and get real jobs. Sound familiar? Good, that’s because this shit isn’t theoretical, so if your eyes have any glaze left, give them a rub and keep reading.
The Justices got really stuck on whether these tariffs are taxes or fees, if they are paid by Americans or paid by foreigners, if previous statutes could, but simply didn’t, have so empowered the president or if Trump’s policy was totally new. This is what textualism does. It is the TicTok of legal theories, made for someone who likes to sound right and hates to think critically. Its infected pretty much all lawyers, and it means they almost perpetually miss the fucking point. The point is, it doesn’t matter what you call them, the tariffs have written Congress, and you, out of the private army equation. Whatever word you use for it, the thing that gives the president $4 trillion of slush fund would give the founders a heart attack. Though admittedly, some of their heart issues might come from how turned on they are (cough, Jackson) rather than how horrified.
The government is very proud of its theoretical $4 trillion. And they should be, it’s the kind of money you can end democracies with. Specifically, our democracy and two or three on the side for good measure. What the Justices should have been asking is “if Trump has this power, how can congress or the American people stop him from unilaterally deciding to (insert your choice: build the wall, buy Greenland, nationalize Walmart, or dismantle all the nukes)? Ordinarily, Presidents have to work with Congress to get things done. Do you or a loved one hate Biden? That’s ok, its pretty normal, and the reason it has not become a heart condition was all the Congressional non-cooperation Biden conveniently blamed or forgot to mention, depending on his audience. Congress has, since the founding, acted as a key check on Presidential wish lists, and most, if not all, of its power comes from the President needing their money. Presidents are like teenagers, nothing you say will keep them from fucking (up) anything they see, but a tactical withdrawal of funds is shockingly effective at making themselves the only realistic candidate available.
I have friends who really like the second Trump administration. “He may break a few rules and bust a few heads, but he gets things done” they say. They seem, no matter my increasingly loud dissent, blissfully unaware that, if Biden didn’t care about the rules, if Biden just did whatever he wanted, the Supreme Court would have the rough size and demographics of a college young democrats meeting (in other words, it would be large, very white, but lots of fuss and attention would go to the six members who collectively checked off 46 race, identity, and sexuality boxes on their questionnaires). If Obama had his way, your neighbors would have healthcare. All of them. Just imagine! If Bush had had his way, the government would have lied to the American people and Congress so our sons and daughters could go fight and die in service to a Bush family hobby of hating Iraq. Wait a second.
As you can probably tell, I have a partisan tilt. We all do. If you don’t, I don’t want to hear from you because it means you are so disinterested in your moral duty to research before you cast a vote, I see you and an active Nazi as essentially six cunningly framed reddit threads apart. But even if you disagree with me and my tilt, the Bush point is actually really important. Say what you will about Iraq, Bush and his administration did a hell of a lot of work to get Congress on side before he launched the Iraq war. He needed to do so, because he needed their money. Not their war declaration, Congress gave that power up before Korea. If he hadn’t needed all the lies, which are a matter of public record, we would have invaded Iraq just as soon after Afghanistan as possible without seeming like we thought invasions were on sale. Congress’s power over the money kept us out of war with Iraq for as much as a year, it forced the executive to make up a whole lot of lies, and when those lies came to light, it guaranteed that our sons and daughters came home ten years before those serving in Afghanistan. It matters.
As an aside, I like to make jokes, I can be irreverent, but I hope its clear, I would be for people saying whatever, thinking whatever, if it meant there were a few fewer victims of war and cyclical violence at the end. If everything Trump said was just as horrifying, but I thought he seriously could help reduce the victims of war and tyranny in our world, I would vote for him. And I reserve most of my political anger for those who wouldn’t. For people who thing the branding or the offensiveness matter more than the end stream suffering and violence. I think most of us agree that when Trump calls all brown immigrants either rapists or terrorists3, real world people will be hurt, killed, silenced, and terrorized, making this issue academic. We don’t have to choose between the message and the consequences because the terrible message has terrible consequences. And its true, most of the time the reasons we articulate for why we act are as important as the action itself, because the voters resonate in silence but act extremely loudly. So I try to care about both, to recognize that the message does matter, but also recognize that when FDR tells people the second world war is all about them, that’s ok, because it was necessary to convince self-interested people to give up everything on distant shores for ideals that had everything to do with everyone else. Sometimes, but usually not, saying the right things out loud is pretty central to doing the right things once everyone has stopped paying attention.
Which is why the Supreme Court treating Trump’s tariffs as a dry question of interpreting text is so alarming. Tomorrow, if Trump declares martial law, Congress has very few tools to stop him. Lawsuits will end in judgements against trump, but no one to enforce them, states will complain but unless we want a full civil war, they are powerless to check him, and congress can impeach him, but we all know how that story goes. The “trial” will involve a bunch of celebrity lawyers taking advantage of a system with no procedure, no rules, and no facts to claim that liberals made the whole thing up and, in fact, the price of eggs was always this high and you should all just forget the word inflation. Avoiding that day, for the right reason, at the right time (now) is more important than liking the party or loving the message that gets the job done.
The tariffs threaten to undue our quaint little experiment with democracy. They threaten to give the executive its own, self-created revenue stream that essentially taxes all of us, the American people, and some foreign entities too, and apparently yields an unregulated bank account with $4 trillion in it. Now, you might say “but I trust President Trump, he won’t declare martial law, he will use that money wisely and fairly”. And to be honest, if you say that I suspect I will struggle to convince you of anything, but I am going to try.
I worked with a judge who once told me “the thing about all court decisions, but especially appellate courts’ (like the Supreme Court) is that you are never just deciding about this one case, but about all the future cases that will look like this one”.4 The idea is that whatever the rules are for Trump, if you want to live in a democracy, they have to be the same rules for Biden, or in 2028, a somehow still vigorously youthful Bernie. Whatever blank check we write for Trump, you have to be comfortable with giving that same check to Bernie. If that thought is horrifying, terrifying, seems like the end of the world, all I can say is, welcome to Empathy ™, we know just how you feel. The alternative, whether you like it or not, is a one party state. There are other parties in Russia, but they operate under very different, more fatal rules than Putin and his best friends. Half the reason there was that coup attempt that feels so much like a particularly memorable group dream is that the only people with a real vote in Russia happen to also own private armies. If you haven’t noticed, private armies and their role in constitutional collapse is a central theme of this article.
Ok, so if I convinced you, or didn’t have to, that Trump’s personal trustworthiness is a bad basis for getting rid of core Congressional checks and balances, we have some other arguments to dispose of.
1) the second amendment: in case there is any doubt, the date when Americans’ personal right to own small arms could meaningfully limit tyranny passed about the time horses started seeming like a rustic piece of military technology.
2) states rights: sorry, your national guard is not ready to defend your liberties and even if they were, they have jobs, your state is broke, and as discussed, soldiers, even the good ones, don’t fight very long without money.
3) the Supreme Court: people talk about this a lot, as if the day Trump or any other president decides “nope, that decision is silly and I am ignoring it” will be some new phase in our country. That stupid. The Supreme Court has been aware since Jackson that its power relies on a lot of soft intangibles. Public trust, rule of law, emergencies, you know, things reasonable people can agree either do or do not exist at any given time (that was withering sarcasm, didn’t you notice?). The Court has known for two centuries that its job is to keep things from getting to the point where democracy instead hinges on a given President feeling bad about ending it. I hate to tell you, we past that point a while ago, your rights have hinged on presidential guilt for close to two decades at least. Welcome to reality, happy you could join us.
4) elections: those can go away. They aren’t the sun, you don’t have good reason to expect cool sci-fi vocabulary and some advanced notice before it stops showing up every morning. If the President has a private army, elections, fair ones anyway, will be pretty much the first, but definitely not the last, American institution they blow up.
Okay, so where does that leave us? First, the Supreme Court is too busy asking if a tariff is a tax to actually critically think about constitutional structure and try to defend it. Second, whatever word you use, the tariffs indisputably do provide the executive with money no one can take away from it. Third, given enough time, someone will eventually come to the White House who actually likes the idea of sticking around longer than than a particularly successful sitcom. Fourth, as commander in chief, that person will not have to strain hard to imagine military uses for their slush fund which conveniently allow for their permanent Penn. ave residence. Fifth, just to be clear, that guy is already there, its Trump, Trump is the guy we are imagining. Sixth, he will spend his $4 trillion personal piggy bank taking over the country so he can get $4 trillion more whenever he feels like it. And seventh, if there is any time at all to do anything about any of this, it is before midterms.
Why? Because the Justices are going to rule against the tariffs. They are going to stop him, or at least make him crown himself before moving forward. But they will do it for all the wrong reasons, so what could be a roadblock will become a speed bump. This isn’t chess, its whack a mole, Trump isn’t a player, MAGA is the machine, and there is no institution, from the Supreme Court to the Democratic Party to the mythical “Republican Resistance” which both understands the game and actually wants you, the people, to win it. Sorry America, it’s a you problem, no one will save you, you have to save yourself. And if you are too lazy, well, we all get it, but that doesn’t mean its ok. Like the unhappy husband who waits too long to give his wife the Heimlich, you aren’t guilty of murder but you definitely are guilty of something.
If our democracy, my choking wife in this metaphor, is to live, we need Congress. We need a Congress filled with people who won their primaries because they promised to cross the aisle, to give up ground, to do whatever it takes to rebuild the third leg of our tottering governmental stool (it doesn’t come through, but I meant that to be scatological humor, on top of the classic three legged ass repository device it more directly invokes). The courts can’t get the job done, Democrats can’t get the job done. If we don’t have the most aggressive primary season of all of our lives, the job just isn’t getting done. In the oral argument that has formed this piece, the Justices lamented that it would take a rare President to return power to congress once given. And its true. Which is why, before we get to the general election and everything is just empty promises and virtue signaling, we need to fill the ballots with people ready to take the people’s power back. I genuinely am afraid that if we keep hoping someone else will save us, another two or four years will bring sanity, or that britain/canada can take our role as superpower, our chance for peaceful, American answers will run out. I really have no interest in dying for my beliefs either, and as a community, I am asking us all to commit to do a little work so none, or at least very few, of us have to5.
PS: if you are reading this, I would love to know your thoughts! That includes the substance, definitely, but also how I write. Starting out, I am trying to give enough information to educate my audience, but not so much to lose them, but I don’t know who my audience is yet! That means I may very well be writing things everyone who reads this already knows, and they are thinking “we know, but get to the analysis of IEPA’s text and how it differs from TWEA”. Alternatively, they may be thinking “I’m sorry, what is a tariff and how is or isn’t it fairly described as a tax”. Importantly, these aren’t two different levels of knowledge or sophistication, they are both great, super important questions whose answers are key to understanding this issue (and which I can answer in mind-numbing detail), so knowing which my reader is more likely to have will help me write something actually worth reading. Which, if no one ever told you is an important part of writing, then you and my legal writing professor from law school have some things in common. Also I am trying to be reasonably lighthearted, while talking about the end of a happy human experiment, so that is a balance I could just totally be cocking up. Let me know if the tone just doesn’t seem to be working, if a certain sobriety seems called for, etc. I gather Americans just aren’t ready to look our doom in the eyes without some preparatory laughter, but am happy to be disabused of that notion.
- If you stop reading before the end, if thinking about our fraying societal tether gets you down, if reading writing that treats “tether” as if it is a word anyone actually uses makes you inexplicably grumpy: good for you! Very healthy choice I envy. Please vote against your incumbent in the next primary for your house and possibly senate seat, as well as any state races. Don’t worry about why or for whom, it’s not the best thing you can do, but it is certainly the best value strategy per hour of political attention you give. Hundreds of hours of reading and thought will help you decide who to vote for instead or why your incumbent is special, but there is essentially a 98% chance that just voting against whoever it is will be as good as an alternative and require none of the above mentioned reading or thought. Cheers! ↩︎
- Keep in mind, this is the man who cheerfully had sex with and “loved” someone he owned. And not in the kinky, “is my wife reading Fifty Shades of Grey to get on with her friends or do I need to learn how to growl manfully before next Tuesday’s date night” sort of way? Isn’t it fun how that guy’s words had a meaningful impact on Hillary’s capacity to be President? I think its fun. (I don’t, I am using humor to cope). ↩︎
- You know, because we should at one level treat different kinds of brown differently, but at another level, treat them all the same, its ironically almost a carbon copy of the actual DEI policies Trump is so upset with. What you hate most in others is what everyone but you can see in yourself. Man is a poet. ↩︎
- I use quotes a lot, and as a lawyer feel the need here in my first piece to explain what I mean. Sometimes, like when quoting the word regulate, I mean it as a literal quote. This word appears, it is exactly the word used, and that matters because a different word might mean different things. I usually count on context to clearly communicate that, which is bad writing, so sue me. But please don’t I don’t have insurance protecting me from this blog. Relatedly, none of this is legal advice, I am not endorsing any crimes, and if it helps, I think I am hilarious so all of this is protected under comedians’ exceptionally strong first amendment protections. I also use quotes to convey that classic thing people do in conversations where they speak in someone else’s voice, often hyperbolically or in apparently ridiculous ways. Here, I am doing kind of both, I am capturing the message as faithfully as someone who clearly remembers the conversation but cannot remember the exact words can. I should also note, I take my duties not to divulge things told me by judges very seriously, I have worked with a number of judges in different roles, some as in they were my boss, some as in I was doing work and they helped, over the years and I have no interest whatsoever in divulging who said what in what tone or context. If you want to see that as patent self interest from a lawyer who works with these people, I definitely wouldn’t say that is unreasonable. ↩︎
- The very few I have specifically in mind are the fatalities caused by Trump’s immigration enforcement policies. Not some hypothetical vigilante warriors. This paragraph is contemplating a civil war or brutally repressive regime, but I am way more interested in thinking about how we avoid getting there than who is a murderer and who a freedom fighter once we do. Lets all work to stay on the side of the line where those judgments are pretty easy, shall we? ↩︎
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