Contrary to the Court’s seeming belief, the legislature isn’t a powerless body getting beaten bloody by the Executive and in need of a life-saving intervention. If Congress objected to the President’s use of the tariff power, they don’t need to rely on the Courts to enforce their will. They could simply curtail it, revoke it in its entirety, or even impeach the President.
“If you choose not to decide, you still have made a choice.”
Neil Peart, “Freewill”
Last week, the International Court of Trade ruled unanimously that President Donald Trump had exceeded the authority granted to the Chief Executive by Congress to levy tariffs. While the ICT, a three member panel based in New York, did not dispute that the President was granted broad powers to levy these tariffs under Section 232 of the Trade Expansion Act of 1962; Sections 122, 201, and 301 of the Trade Act of 1974; Section 338 of the Tariff Act of 1930; and the International Emergency Economic Powers Act of 1977; they disputed President Trump’s declaration of a national security emergency as a vehicle to exercise the tariff power. “A tax deals with a budget deficit by raising revenue,” they explained. “A dam deals with flooding by holding back a river. But there is no such association between the act of imposing a tariff and the ‘unusual and extraordinary threat[s]’ that the Trafficking Orders purport to combat.” As they concluded, the Court “does not read IEEPA to confer such unbounded authority and sets aside the challenged tariffs imposed thereunder.” Thus, the worldwide retaliatory duties enacted on April 2, “exceed any authority granted to the President by IEEPA to regulate importation” and the drug trafficking-related levies “fail because they do not deal with the threats set forth in those orders,” making the tariffs themselves null and void. Perhaps needless to say, President Trump’s detractors immediately cheered the ruling, claiming that the Court had stepped in to reaffirm the separation of powers fundamental to our Constitutional Republic and had rightfully returned the taxing power to Congress as described in the Constitution itself. Perhaps equally needless to say, the Court did no such thing. They didn’t rule on the existence of these powers themselves – which in full disclosure, I doubt any one person should have in principle and yet in practice Congress has granted it as even Congress itself acknowledges – instead, they ruled that the President did it the wrong way and did it too much. Putting this another way, nothing in the ruling prevented President Trump from reimposing the tariffs by doing them piecemeal or using a different rationale, as evidenced by the fact that the stock market didn’t surge because the so-called trade wars were over immediately after the ruling. To me at least, this makes the ruling essentially arbitrary, yet another instance of unelected judges substituting their own judgement for the highest elected official in the United States, effectively undermining the Constitution Trump-detractors always claim to be protecting.
Sadly, we see a similar pattern in disputes over government spending, where President Trump has claimed being Chief Executive imbues him with broad powers to reorganize or even dismantle departments that Congress has allocated funding for. Some insist that the President is compelled to spend every dollar Congress decreed, what I have jokingly referred to as the “Drunken Sailor Theory of Congressional Appropriations, meaning that if any funding remains at the end of the fiscal year, the President must hand it out on street corners. In a separate ruling last Thursday, the Ninth Circuit Court of Appeals claimed that the President cannot lay off staff in various departments because he only has supervisory powers over the Executive Branch despite that the Constitution clearly identifies him as the Chief Executive Officer and the notion that he was the singular incarnation of the Executive was discussed at length by the Founders. Regardless, Judge William Fletcher, an appointee of President Bill Clinton, actually wrote “The executive order at issue here far exceeds the president’s supervisory powers under the Constitution.” This, of course, is backwards: The Constitution grants the President plenary power over the Executive Branch, imbuing all executive authority in his or her person, while Congress is granted oversight in a supervisory role. Somehow, however, two out of the three members of the Ninth Circuit panel, both appointed by Democrats, apparently believe this power is strictly limited to the relative handful of people he appoints and even then this power is not absolute. As they put it, “The President enjoys significant removal power with respect to the appointed officers of federal agencies, but even that power is not unlimited.” Yet, if the President can’t fire federal employees, who can? No one? Congress, of course, lacks that authority. They have an advise and consent role for certain government officials, but no role in layoffs or firings (if you doubt this, it was tried shortly after the Civil War, when Congress passed a law extending advise and consent to removal, one which was broadly considered unconstitutional and was passed to dare President Andrew Johnson into an impeachable offense). According to the Court itself, the firing power, assuming it exists in the first place, is instead invested in some kind of “comprehensive administrative scheme that Congress has enacted to handle federal sector labor disputes.” Even setting aside that this is not clearly labor dispute where a contract has been violated, it has been interpreted to mean that the vehicles President Trump used for these layoffs, including personally signing Executive Orders and engaging the Office of Personal Management, are not sufficient, that somehow these decisions must come from the agencies themselves in collaboration with Congress, via a mechanism previously unknown. Of course, the agencies themselves report directly to the President per the Constitution itself, making what an agency decides to do independent of the President a rather bizarre question. Why are they empowered to operate outside the appropriate organizational hierarchy proscribed by the Constitution?
Whatever your opinion, there is another way forward in these and similar cases that doesn’t require the Courts to intervene in what are essentially disputes, or more accurately potential disputes, between the Executive and Congress. Namely, that Congress itself can intervene. Contrary to the Court’s seeming belief, the legislature isn’t a powerless body getting beaten bloody by the Executive and in need of a life-saving intervention. If Congress objected to the President’s use of the tariff power, they don’t need to rely on the Courts to enforce their will. They could simply curtail it, revoke it in its entirety, or even impeach the President. That they have chosen not to do so is a choice in and of itself, not an excuse for a third branch of government to get involved, especially one whose role isn’t to make policy and who has no purview over international affairs in any event. Likewise, if Congress objects to how the President is spending money or reorganizing departments, they can prescribe more detailed measures, withhold funding in other areas, or once again, impeach. Their failure to act in this regard doesn’t imply that they cannot act, or that the Courts are compelled to act on their behalf. On the contrary, it implies the opposite. The action of the Courts only interferes with the potential actions or inactions of the Congress, taking power away from them and abrogating it to themselves in an arbitrary, inconsistent manner that undermines the separation of powers fundamental to our system of government. This is doubly true when different Courts frequently rule in different ways; immediately after the ICT’s decision, for example, the appropriate appeals court reversed it, putting the tariffs back in place while similarly conflicting rulings have been issued on the President’s authority over government staffing. While many have noted this results in stopping or slowing down President Trump’s agenda, it also creates the sort of chaos, confusion, and instability his detractors frequently accuse him of. The solution is simple: The Courts should wherever possible, and when no specific Constitutional, legal principle, or binding contract is at play, refrain from inserting themselves into matters better handled by the two elected branches of government whether or not one of them has chosen to act. If there is something to be decided, they can issue decisions that allow the President’s orders to stand during the inevitable appeals process to avoid interfering with a duly elected President’s agenda. If the ruling goes against the President, it should be done so in a manner that is either localized to the contract or dispute at hand, or generalized to the broader issue of its Constitutionality. I understand that some one would claim more immediate action on behalf of the Courts is required, but the Courts aren’t a police system for the executive, patrolling each and every decision. They are fundamentally a mechanism to resolve disputes that can’t be addressed otherwise and wherever possible they should defer to the will of the people, expressed in who they chose to represent them in Congress and the White House. After all, there’s a reason the Constitution begins with the phrase, “We the people,” details the operations of Congress first, the Executive second, and the Courts third, and features three co-equal branches of government in the first place. That reason is not to have unelected justices vetoing the elected President, especially not when Congress is empowered to do so on their own.
Confessions of a Conservative Atheist 