Tariff: We won!

Trump slapdown! We won! The American people won!

Or, to be more precise:

 The Supreme Court voted 6-3 to deny the executive -- Trump -- the ability to impose tariffs unilaterally under the law he cited for their justification.

My amicus curiae brief, prepared by attorney Thad Guyer, was on the side that won. 

I was the named petitioner in the brief. I wrote the introduction and framed an argument. Guyer did the work. I made a historical argument that the authors of the Constitution had good ideological and practical reasons to put the power to impose tariff taxes in the hands of Congress. 

What supposedly got decided: 

The court decided that Congress needed to be more specific in empowering a president to impose tariffs under the International Emergency Economic Powers Act than in fact it was, so Trump's tariffs were improper.

The court sided with Congress in the tug-of-war over which branch of government is really in charge. Trump has been winning big, so this was a tiny setback.

What is really going on:

All the parsing of the law and precedent is window dressing. It is pretense. When it involves Trump, the Supreme Court is all politics all the time. The court's political problem is complicated by the fact that Trump has the temperament of a badly spoiled toddler.

Worse, he is a temperamental and badly-spoiled toddler with a loaded gun.

The three liberal justices (Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan) voted as a block to oppose Trump and say that Congress was clearly, by the text and by any fair reading of history, in charge of tariffs. The two justices deeply in the Trump camp, Clarence Thomas and Samuel Alito, found justification for giving Trump whatever he wants, and will do so in the future: tariffs, end to birthright citizenship, Trump grift and favoritism, whatever. They are Trump's guys, period.

The other four justices -- Chief Justice John Roberts and Justices Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett -- made a careful, political calculation involving their own policy goals on matters of jurisprudence, balanced against their personal reputations, balanced against the problem of how to handle the willful toddler. They are politicians gaming out a political problem. Whether a "tariff" is mostly a tax or whether it is simply a way to regulate trade is a matter that can arguably go either way. That meant the four justices could to do pure politics under the pretense that they are carefully parsing the law. 

The four justices understand their personal credibility problem. (So do Thomas and Alito, but they don't care.) Trump openly says the court is his agent. The court majority owes him. His appointees especially owe him. It is embarrassing to the justices and bad for the court's credibility to be thought of as partisan puppets. The court is set up for 6-3 decisions to vote Trump's favor on everything. The four justices know they need to cover their tracks so it doesn't appear that they are all like Thomas and Alito.

So why not just show a little independence and vote "no" on something Trump wants? Like this case.   

There is the toddler-tantrum problem. Trump isn't measured or reasonable. Look at DOGE. Look at what he did to foreign aid. The toddler has a gun. He might just ignore the court -- setting a devastating precedent that the courts are not an equal branch of government.  He might destroy the Marbury v. Madison precedent.

Or, Trump might use executive power to punish the courts by forcing them to vacate federal courthouses, by turning off their electricity, or by forbidding Justice Department lawyers to appear in federal courts -- all things Trump could do exclusively using Article Two executive power. Trump could say the courts are corrupt and he was defending justice. It would follow a well-trod path for Trump to announce that formerly-loyal Americans became RINOs and enemies of the people.

Would Trump do that? He could. He has the power to do it. He might. Who knows what a spoiled toddler might do? 

Therefore Trump needed to be "handled." The four justices opposed Trump on tariffs, to maintain credibility as a defender of checks and balances, while trying not to upset him. Deny but mollify. Roberts needed to be on the side supporting Congress, so the "Roberts Court" isn't understood to be complicit in ending checks and balances. Barrett and Gorsuch voted along with Roberts to make the six votes. Kavanaugh drew the short straw, and so joined the Thomas and Alito, Trump's sure-thing partisans, to give them cover as if they were making a legal argument about the meaning of "regulation," not a knee-jerk political decision.

This case was not about tariffs. The whole charade was about how justices are struggling to maintain a semblance of credibility when interacting with a Republican president with the impulse control of a toddler.

My amicus brief is a tiny part of history. I am happy about that. I doubt that it turned the tide. I suspect that history was shaped by four justices with a complicated public relations problem. 

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