Goldwater Institute Brief: Trump is acting like a king, not a president.

My amicus curiae brief in the Trump tariff case focuses on the dominos of expanding presidential power. Attorney Thad Guyer argued we are seeing a runaway power grab.

Other briefs took different approaches. 

The Goldwater Institute looked at the history of parliaments and kings. Maybe they think the Supreme Court justices really are "originalists." 

The Goldwater Institute is what anyone old enough to remember Barry Goldwater might expect it to be. The Goldwater Institute describes itself as 

a nonpartisan public police and research foundation devoted to advancing the principles of limited government, individual freedom, and constitutional protections.

Barry Goldwater, the U.S. senator and the 1964 presidential candidate, was an old school conservative of exacting principle. He was a conservative first, a Republican second. Limited government conservatism led him to do unpopular things. He opposed the 1964 Civil Rights Act, with its demand of public accommodation of all races by places open to the public. By 1964, even among Republicans, it was no longer popular for private businesses to put up signs that said, "We don't serve Colored People" or something cruder. Goldwater wasn't noteworthy for being racist. That political space belonged to George Wallace. Goldwater didn't want government telling restaurants and gas stations and motels who they had to serve, and if it meant a harsher, more cruel world for Black Americans, so be it. It was the price of freedom, as he saw it. 

Goldwater played dispositive role in the Nixon resignation a decade later. Republican senators saw that President Nixon had obstructed justice when he lied to suppress the investigation of the Watergate break-in. The president broke the law. Back then Republican officeholders cared about whether a Republican president broke the law. Goldwater said he would vote to convict in an impeachment. That was the final straw. If conservative icon Barry Goldwater would not overlook presidential lawbreaking, then Nixon's presidency was over. Nixon resigned.

Principle matters in the Goldwater amicus curiae brief. The principle is that taxation of the people must come from the people not the king. Their brief was primarily a history lesson going back to Magna Carta and the centuries-long struggle between British kings and Parliament over exactly who had the power to levy taxes. Parliament fought and won. British kings lost their heads in this battle. 

The Constitution’s authors were well aware of the possibility of an executive official imposing taxes unilaterally. The history of the Stuart kings, who ruled England from 1603 until 1689 before being dethroned by the Glorious Revolution, was (and remains) infamous for just that reason, and that history was well known to the Constitution’s framers. 

For colonists in North America, "No taxation without representation" went beyond opposing taxes from a distant king. It meant that the only legitimate taxes come from representatives, and indeed one's own representatives. The brief reads:

Parliament imposed levies on imported tea, glass, lead, paper, and paint. Protests over these duties led to the repeal of all but the tea tax. When Parliament reinforced that tax with the Tea Act of 1773, the result was an outbreak of protests in which Americans forced tea shipments to return to England or, in the most famous case, destroyed 92,000 pounds of tea by throwing it into Boston Harbor.  

The reason for these protests was, again, that the taxing power should be held exclusively by the people’s elected representatives. While the 1760s taxes were levied by Parliament instead of the king, as the Stuart impositions had been, Americans were not, and could not be, represented in Parliament. That meant its taxes were as illegitimate as the Stuarts’ prerogative taxation

The Goldwater brief argues that the taxation power cannot be delegated from the people's representatives to the executive. It reminded the Supreme Court both of its prior decisions and the text of the Constitution.

The Constitution is unusually clear in vesting Congress, and Congress alone, with that power [to tax.] Not only does it state that “[t]he Congress shall have power to lay and collect taxes, duties, imposts and excises,” U.S. Const. art. I § 8, but it also specifies that all bills for raising revenue must originate in the House.

The Goldwater Institute brief concludes arguing a point that is central to several other amicus briefs, that the power to impose tariffs is unquestionably a "major question." Major questions -- issues with historical and economic consequence -- require specific language from Congress that spells out exactly what discretion the executive has if this is to be a proper delegation of power.  I will explore the "major question" issue further when I look at other briefs in future posts. What is unique about the Goldwater brief is that 28 of 34 pages of their brief hammer home the historical record showing`that the original purpose and text of the Constitution places the power to impose tariffs with Congress alone.

If the majority of the Supreme Court, where this case will likely eventually land, are in fact principled "originalists" wedded to the plain meaning of text when it was written, then the Goldwater brief will persuasive. This brief is a good effort, and it might shame them into ruling in congruence with their stated principles. But it might be to no avail. The Supreme Court majority might only pretend originalist principles, when their real principle is to empower a Republican president, whatever he might choose to do.

The Goldwater Institute gave it a shot. Perhaps their focus on British and early American history seems excessive, maybe even extreme. But in Barry Goldwater's memorable words from the 1964 presidential campaign, "Extremism in the defense of liberty is no vice."

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