Supreme Court conservatives are about to rain misery on MAGA
The tariffs case pending before the Supreme Court is one of those rare cases where, even as a federal litigator, I hope the Republican majority does the wrong thing.
Against the odds, I’m rooting for a Trump win. Not because I think that’s the correct legal outcome (it isn’t, see below), but because Trump’s disastrous tariffs, if sustained, could deliver a sorely-needed political lesson to Americans flirting with autocracy.
MAGA voters need to experience real and sustained pain in the pocketbook to learn the perils of electing a charismatic imbecile. The other cohort responsible for this mess, 86 million voters who couldn’t be bothered last November, needs to find out what happens when a felon campaigning on revenge and terror isn’t real enough to move them to vote. They may not care about ICE brutality, but they will care about soup kitchen lines when they’re standing in them.
The economic pain is real, and worsening, even after Tuesday’s election blowout. But if there’s any upside to giving nuclear codes to a toddler, it’s that Americans, myself included, are learning an abiding lesson: We’ve been taking our precious democracy for granted.
Trump’s tariffs announced our folly to the world
Trump’s haphazard and sloppy imposition of tariffs confirmed to the world that the US is led by a man who knows nothing about economics, who lacks an understanding of contemporary manufacturing. He has no idea, for example, that car manufacturers rely on global supply chains, using components sourced across multiple countries. If nine components come from nine different countries, taxing the assembling parts each time they go back and forth is asinine.
Because he lacked the curiosity or discipline to learn which US manufacturers would be affected by which tariffs, or which components would become prohibitively expensive due to retaliatory tariffs, Trump first proposed a lazy, across the board tariff formula that foreign media described as “insane.” He said each US tariff would be half the rate of the other country’s tariffs, with a 10% floor. But this was based on eliminating trade deficits, an impossible goal due to differing population sizes, differing economies, trade barriers, and currency differences.
The Constitution vests power to regulate commerce and tax with Congress
Tariffs are not all bad, all the time. Used surgically, they can help strengthen key industries struggling against imports. Precise, agreed, or reciprocal tariffs can also solidify trade partnerships in service to national security.
But even when tariffs make sense economically, which Trump’s do not, how they are adopted matters. The Supreme Court confirmed long ago that all presidential power must stem from either the Constitution or an act of Congress. That means Trump cannot just grab power because he likes how it feels on his fingers.
Plaintiffs challenging Trump’s tariffs before the Supreme Court point out that “Tariffs are taxes. They take dollars from Americans’ pockets and deposit them into the U.S. Treasury.” The founders gave taxing power to Congress alone in Article I of the US Constitution which vests Congress — not the President — with the power to “lay and collect Taxes, Duties, Imposts and Excises,” and to “regulate Commerce with foreign Nations.” Unless Congress clearly and specifically delegates that authority through valid legislation, it remains as written.
Why didn’t Trump involve Congress to begin with?
At the heart of the case, Trump’s attempt to usurp Congressional power over commerce offends the Constitution’s separation of powers, the lynchpin that holds the Constitution and the rule of law together. Because he lacks an appreciation for the US Constitution, Trump seems unable to comprehend the importance, or even the meaning, of the separation and balance of powers.
Having imposed the tariffs by fiat, Trump now claims the tariffs case is “one of the most important cases in the history of our country,” and “literally, LIFE OR DEATH for our Country,” claiming a Supreme Court reversal of his tariffs could “lead to another Great Depression.”
Economists say Trump’s economic incompetence could trigger a depression or at least a recession, regardless of tariffs. So it appears that Trump’s drama is an early attempt to scapegoat the high court for his own economic malfeasance, because he knows economic collapse is a real possibility.
Trump’s devout prayer for tariffs also invites the question: if he felt so strongly that only tariffs can restore the nation to greatness, why didn’t he pursue them the legal way, and get Congress to pass legislation? Republicans have a majority in both houses, why must he rule by tantrum?
Giving Trump authority to define “emergencies” is in fact a life and death matter
Following Wednesday’s oral arguments, the Supreme Court will consider whether the International Emergency Economic Powers Act (IEEPA) delegated tariff authority to the president and whether, under the major questions doctrine, the IEEPA did so with a clear Congressional mandate.
The most critical part of the case, as I see it, will be how an ‘emergency’ can be declared. The IEEPA requires an “unusual and extraordinary threat” to the US that constitutes a national emergency to trigger the president’s powers under the Act. Trump’s top henchman Stephen Miller claims that Trump’s declaration of a national emergency is never subject to judicial review, arguing that the president has absolute power in such matters and that “the judiciary is not supreme.”
It’s ludicrous that Trump would try to declare trade imbalances an “emergency,” given that trade imbalances have existed for decades. But far more consequential than tariffs is Trump’s dangerous assertion that he alone can decide when there’s an “emergency” triggering expanded presidential powers.
If the Supreme Court gives credence to this claim, granting Trump the authority to declare any “emergency” he wants, independent of facts on the ground, concern about tariffs, commerce, and the price of cars will seem trite.
If Trump can make up emergencies to expand his own power as he goes along, he will continue to murder people in fishing boats in South America based on suspicion alone, as his masked ICE agents at home start replacing pepper balls with bullets.
Sabrina Haake is a columnist and 25+ year federal trial attorney specializing in 1st and 14th A defense. Her Substack, The Haake Take, is free.
