"Bristles of swine." My amicus brief to the U.S. Supreme Court

James Madison: 

"Imposts [i.e. tariffs] must be founded on the principles of mutual concession." 

My brief: 

"Congressional legislation can be messy and full of special cases, but that is a feature, not a bug; the country itself is messy and full of special cases."

Amicus briefs are submitted on paper in little bound booklets

My "friend of the court" brief to the U.S. Supreme Court argues that imposing taxes is the job of Congress, not the president.

     ---This is written in the Constitution.
     ---This is the original and traditional practice.
     ---There is good, practical reason for it.

President Trump's argument to the Supreme Court is that he has emergency powers allowing him to create tariffs at will. He also argues that his tariffs must continue because they reflect the public interest.

My brief argues that the clear letter of the Constitution says he does not have that right, and moreover, that tariffs must be created by Congress to reflect the public interest. 

I use a tiny item -- the current tariff on glass used in wine bottles and the historical tariff on "bristles of swine" -- as my case in point. The bigger issue, of course, is that this overreach in tariffs is a step toward tyranny in multiple arenas. 

Here is how my brief begins:  

STATEMENT OF INTEREST OF AMICUS CURIAE

Peter W. Sage, age 76, is a retired professional who operates a small farm and vineyard in Southern Oregon. He is financially vulnerable to extra costs imposed by tariffs. The tariff on wine bottles dramatically reduces the margin on sales of inventory-clearing wines at discount venues such as Costco and Trader Joe’s, where margins were already thin. 

Mr. Sage relies on the constitutional structure of the United States, specifically on the separation of powers and Congress’s exclusive authority to impose tariffs, to protect his financial interests. Congressional authority over tariffs provides him with practical access to decision-makers in the House and Senate who understand and represent the needs of small agricultural producers in Southern Oregon like himself.

In addition to these concrete economic concerns, Mr. Sage has, for almost a decade, written about executive overreach in his political blog, Up Close with Peter Sage, where he reports on in-person interactions with presidential candidates in New Hampshire and Iowa. Until recently, Mr. Sage’s warnings about unchecked executive power were largely theoretical. However, he now fears targeted retaliation by the President of the United States, including politically-motivated IRS audits, placement on a no-fly list, interference with the naturalization status of family members, and harassment of lawfully present Hispanic workers at his vineyard. 

These threats are manifesting now, in real time. 

SUMMARY OF ARGUMENT: 

The International Emergency Economic Powers Act (IEEPA) does not explicitly authorize the imposition of tariffs, particularly not the expansive authority claimed in this instance. In Mr. Sage’s view, interpreting IEEPA to grant such unlimited power to impose taxes on the American public would represent the most evident unconstitutional transfer of legislative authority in his lifetime.

Mr. Sage can talk to his elected representatives. His economic interests as a small vineyard operator in Southern Oregon are directly threatened by cutting Congress out of its role in regulating tariffs. Oregon representatives can politically horse trade with representatives in sister states, they can bargain and barter for their constituencies seeking win-win outcomes. Mr. Sage wants tariffs to be controlled exactly as the constitution provides. 

This brief frames Mr. Sage’s argument around three statutory domains where Congress has exercised exclusive authority: tariffs, the judiciary, and the civil service. These domains, grounded in Article I and shaped by generations of legislative action, are the constitutional guardrails preventing executive power from subsuming the entire machinery of government.

The generation that carried out the American Revolution and drafted the Constitution asserted that taxation without representation was tyranny. Tariffs were a point of controversy at the nation’s founding. Alexander Hamilton sought to persuade Congress of the value of protecting infant industries with tariffs, as he outlined in his Report on the Subject of Manufactures. 

James Madison, a member of the House of Representatives, spoke on the floor of the House of the need to consider the concerns of different constituencies: 

That it will be necessary on the one hand, to weigh and regard the sentiments of the gentlemen from the different parts of the United States; but on the other hand, we must limit our consideration on this head, and notwithstanding all the deference and respect we pay to those sentiments, we must consider the general interest of the union, for this is as much every gentleman’s duty to consider as is the local or state interest—and any system of impost that this committee will adopt, must be founded on the principles of mutual concession.

The First Congress immediately got to work on a tariff. The Tariff of 1789 advantaged and disadvantaged certain goods. For example: Madeira wine, 18 cents a gallon; all other wines, 10 cents a gallon; brown sugars, one cent a pound; loaf sugars, three cents a pound; tallow candles, two cents a pound; wax or spermaceti candles, six cents a pound.

In 1804, Congress amended the Act of 1789. It added a list of items exempted from tariffs: rags of linen; cotton, woolen, and hempen cloth; bristles of swine; and the bark of the cork tree.

Mr. Sage may not succeed in eliminating tariffs on wine bottles; he expects that he will not. He recognizes that his is a particular interest, but not one more particular than the interest of people making use of bristles of swine in 1804, and that particular problem found relief in legislation. 

Tariffs injure different people in different ways, which is why Mr. Sage considers it both constitutional and reasonable that Congress—an institution that combines and melds a multiplicity of interests—is the body given authority to weigh and negotiate the various claims of people affected by a tariff. Mr. Sage argues that the people who hear his concerns must be decision-makers, not bystanders, for there to be representation. He recognizes that congressional legislation can be messy and full of special cases, but that is a feature, not a bug; the country itself is messy and full of special cases.

Mr. Sage has both a private and public interest in ending the practice of the government using pretexts of war powers or emergencies to remove his right of representation on tax matters. Pretextual emergencies, if allowed by the courts to stand, create an unchecked executive. It is dangerous behavior and precedent. Mr. Sage considers this a strong place to draw the line, since the notion that taxation requires representation is both written into the Constitution and deeply rooted in American history. 

The unchecked use of tariff authority by the Executive risks transforming them into instruments of domestic retribution, selectively harming particular regions, industries, or groups of citizens within our own borders. Targeting a state or a sector gives the executive the power to punish an area or industry unmoored from the representational process that was designed to restrain such targeting. Every member of Congress must face the political consequences of tariff policy at home; a second term president, by contrast, faces none. That insulation from accountability makes the unilateral exercise of tariff power especially dangerous. The only thing worse than the messy, interest-laden, compromise-driven process of Congress exercising its constitutional tariff powers is Congress not exercising them at all. Disorder in legislation is a symptom of democratic engagement; order imposed by a single will is a symptom of tyranny. 

The Framers understood that the taxing power, including tariffs, belongs to the people’s representatives precisely because its burdens fall unevenly. Mr. Sage therefore asks this Court to reaffirm the principle that taxation—by whatever name, and however imposed—must remain under the control of those answerable to the people.

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