Something seems to be stirring in Washington, though it’s hard to say what or where it’s headed. The recent Supreme Court ruling that President Trump lacked the authority and jurisidiction to impose tariffs through executive orders without congressional approval could be a sign of this change. The internal debate between Justices Gorsuch (who concurred) and Thomas (who dissented) pits Trump’s attempt to aggrandize presidential power against the nation’s constitutional framework.
The New York Times described the U.S. Supreme Court’s ruling to overturn most tariffs on imported goods, based on the executive’s interpretation of the International Emergency Economic Powers Act (IEEPA), as a «muscular show of independence by Chief Justice John Roberts», who wrote the majority opinion.
According to the Court, the Framers’ original intention was clearly to invest Congress alone, i.e., the legislative branch, with the power to impose taxes. Referring to a previous ruling, the Court notes that «tariffs operate directly on domestic importers to raise revenue for the Treasury and “are very clearly a branch of the taxing power”» belonging to Congress. The tariffs imposed by President Trump functioned exactly as a tax, a source of revenue guaranteeing a yield of approximately $3 trillion for the federal government’s depleted coffers.
In response to the government’s interpretations during the debate that the International Emergency Economic Powers Act granted the president the power to impose tariffs of any amount for an indefinite period, the Court emphasized its longstanding practice of not accepting readings of ambiguous legal texts as a basis for «extraordinary delegations of congressional powers.»
According to the Court’s ruling, these interpretations represent a «transformative expansion of the President’s authority over tariff policy.»
Thus, the need to go through the slow legislative process and the limitation of presidential jurisdiction are limited solely to the issue of tariffs. In the ruling, the Court indicates also the way around to overcome this sudden limitation imposed on the Executive: «The Court is therefore skeptical that in IEEPA—and IEEPA alone—Congress hid a delegation of its birth-right power to tax within the quotidian power to “regulate”.»
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Trump immediately announced new tariffs, and the administration is working to find a legal framework that would bring them within the scope of executive action. His contempt for the Court and Congress is evident as well. He called the majority of judges «fools and lap dogs» who had bowed to foreign influence. After the ruling returned the issue of tariffs to Congress’s legislative power, Trump said he has no intention of following this path: «I don’t have to. I have the right to do tariffs.»
After it have him granted a lot, this is the first Supreme Court ruling during Trump’s second term to limit the expansion of executive power, which the current President would like to attribute to himself. However, the opinions of Justices Gorsuch (concurring) and Thomas (dissenting) highlight the real constitutional issue at stake: Specifically, what is the true scope of the separation of powers in the American democracy?
According to Justice Thomas, Congress has legislative power only with respect to «the deprivation of life, liberty, and property»; legal matters not specifically touching on these areas are not considered legislative power, and «Congress may hand over most of its constitutionally vested powers to the President completely and forever.» In one passage, he equates the US President with the British king with regard to the power to impose tariffs without limitation.
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Judge Gorsuch devotes the conclusion of his opinion to this issue. If things were as Judge Thomas proposes, Gorsuch writes, «What do we make of the Constitution’s text? Section 1 of Article I «vests “all legislative Powers herein granted” in Congress and no one else.» Referring to the work of the early U.S. Congresses, for whom the issue of tariffs was central, Gorsuch points out that all matters related to tax revenue and taxes belong to Congress alone. Congress does not have the power to cede this power entirely and without clear limits to the President.
Gorsuch’s opinion concludes with what the New York Times has called a «requiem for Congress», demonstrating Congress’s constitutional function and its importance to the nation’s cohesion, a function that Congress seems to have forgotten and no longer exercises today.
«Most major decisions affecting the rights and responsibilities of the American people are funneled through legislative process for a reason. Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man. There, deliberation tempers impulses and compromise hammers disagreement into workable solutions through compromise. And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when rules change day to day. In all, the legislative process helps ensure that each of us has a stake in the laws that govern us and in the Nation’s future. (…) But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.»
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According to Gorsuch, Trump is trying to «aggrandize» his power as President of the United States. His impatience with Congress and the legislative process, which sometimes borders on contempt, is a clear indication of this—and of the high price that the Nation and its constitutional architecture are paying. With a Republican majority in both the House of Representatives and the Senate and a party leadership that prevents any deliberative debate through its procedural strategy, Trump could easily secure everything he wants through the legislative process. However, he does not do so because, according to his conception of the presidency, he believes he has the right not to.
He does not do so because the time required for deliberation and the legislative process does not align with the pace of power’s digitalization that is taking place now—thus turning the constitutional architecture of American democracy into a huge dystopia. In doing so, the bulwark of freedom is dismantled—something everyone, not just American citizens, should be aware of.
La Corte e il Re - SettimanaNews