By Kevin D. Williamson
Monday, February 23, 2026
Anyone is free to disagree with Justice Clarence Thomas’s
legal opinions—but only a fool fails to take his views seriously. I am always a
little nervous when I find myself on the opposite side of a legal question from
Justice Thomas, but Chief Justice John Roberts does Thomas the courtesy of a
very thoughtful response to his dissent in the recent tariffs case, a response
that contains what I think we might consider a “Kinsley gaffe,” i.e., stating a
truth that is more than one meant to say. The chief justice writes:
Suppose for argument’s sake that
Congress can delegate its tariff powers to the President as completely as
Justice Thomas suggests. Even then, the question remains whether Congress has
given the President the tariff authority he claims in this case—or whether the
President is seeking to exploit questionable statutory language to aggrandize
his own power.
Chief Justice Roberts is a very careful writer, and his
words here, while couched in the form of a question, are plainer than I am
accustomed to reading from him or from any other member of the court: “the
President is seeking to exploit questionable statutory language to aggrandize
his own power.” One need not be an esoteric Straussian to assume that the word whether
should be omitted to access the sentence’s true meaning.
Of course “the President is seeking to exploit
questionable statutory language to aggrandize his own power.” He also seeks to
exploit imaginary statutory language to aggrandize his own power, and seeks to
exploit phony emergencies to aggrandize his own power, to exploit imaginary
Venezuelan fentanyl to aggrandize his own power, to exploit imaginary Haitian
cat-eaters in Ohio to aggrandize his own power, to exploit an absolutely
ignorant misunderstanding of trade deficits to aggrandize his own power, etc.
The president of these United States is not an aspiring autocrat but an actual
autocrat acting outside of the constitutional powers of his office in matters
ranging from imposing illegal taxes on Americans to carrying out massacres of
civilians in the Caribbean. Speaking with his trademark stroke victim’s diction, Trump insisted:
I am allowed to cut off any and
all trade or business with that same country. In other words, I can destroy the
trade. I can destroy the country! I’m even allowed to impose a foreign
country-destroying embargo. I can embargo. I can do anything I want, but I
can’t charge $1. Because that’s not what it says, and that’s the way it even
reads. I can do anything I wanted to do to them but can’t charge any money. So
I’m allowed to destroy the country, but it can’t be a little fee.
We have there what would have been another Kinsley gaffe
coming from the mouth of anyone else—the president’s attachment to the
erroneous and unconstitutional idea that “I can do anything I want”—but, given
that Trump has been talking about himself as a god-emperor for as long as he
has been in politics, the statement surely is not unintentional.
“The President is seeking to exploit questionable
statutory language to aggrandize his own power,” writes the chief justice—out
of context, yes, but that is where the truth is. And the Supreme Court now has
acted, in its modest way. Trump, being Trump, has announced that he will set
about subverting this ruling by any means he can find “to exploit questionable
statutory language to aggrandize his own power.”
Back to the traumatic brain injury ward:
More is a symbol of economic
national security. And also, I would say, just for our country itself, so
important because we’re doing so well as a country. We’ve never done so well.
The good news is that there are methods, practices, statutes and authorities,
as recognized by the entire court in this terrible decision, and also as
recognized by Congress, which they refer to, that are even stronger than the
IEEPA tariffs available to me as President of the United States.
Attention to Mike Johnson, the gutless worm who serves as
speaker of the House—that is the sound of history calling your name. The
Supreme Court has done what the Supreme Court can do, but now it is time for
Congress to get in the game—long past time, in fact. The best time for Congress
to rediscover its self-respect (as opposed to its self-importance) would have
been 40 years ago—the second-best time is now. Never mind the fantasy of
a Republican Congress impeaching and removing Donald Trump from the presidency,
a prophylactic measure that should have been taken at the very latest after the
attempted coup d’état that crowned his first administration but which
was not, thanks in part to the catastrophic miscalculation of the risk-averse
Mitch McConnell, then the Republican leader in the Senate. Congressional
Republicans, having grown accustomed to (and perhaps even fond of) the taste of
cordwainer’s leather, will not be weaned from their boot-licking ways so
quickly. What could be done instead—what should be done but almost certainly
will not be done—is to remove all of the president’s current statutory authorities
touching trade in such a way as to invite his taking the opportunity “to
exploit questionable statutory language to aggrandize his own power.”
And while it is the case that as a political reality
Donald Trump cannot be impeached, is it so impossible to think that Commerce
Secretary Howard Lutnick or Kevin Hassett, the president’s top economic
adviser, could? If not by gutless Republicans today, then by a new Democratic
majority come January? Can you imagine how much fun it would be to have a
halfway competent economic inquisitor (I know, I know: Democrats)
putting one of those guys through some tough questions (including ethical
questions about Lutnick’s self-dealing) in front of the cameras for a couple of
weeks? Hassett, who does not believe a word of the bullshit that comes out of
his mouth but really likes to ride on Air Force One, would, from the Democratic
point of view, make an excellent face for the Republican Party in its
current intellectually vacant, shifty, self-serving, amateur-hour incarnation.
The Trump administration’s tariff policy is—and I cannot
write was, inasmuch as they are going to try to ignore the Supreme Court
ruling—bad on three counts.
1.
Least important is the fiscal calculation: The
tariffs will bring in some money, but the extra revenue is had at the expense
of decreased economic efficiency and increased economic chaos. There are easier
ways to raise a couple hundred billion dollars a year.
2.
Slightly more important, in the long run, is the
ideological content: Protectionism is a dumb and backward economic policy that
may serve the short- to middle-term interests of a small number of market
incumbents but which does not serve the overall economy very well. The
relatively dynamic and risk-exposed U.S. economy has lifted Americans’ standard
of living relative to the rest of the world, while the relatively statist,
risk-averse, protectionist economic policies of the rich nations of Europe have
produced relatively low growth, to such an extent that U.S. GDP per capita is
now half-again as much as Germany’s and twice the average of the
European Union. Japan’s GDP per capita is lower than that of West Virginia or
Mississippi, our two poorest states. Trump’s notion that the rest of the world
has been getting over on the United States through crafty trade policy is utterly
unsupported by the facts—it is pure flat-earther economics. The fact that
ignorant protectionism is on the upswing in both parties—Joe Biden’s trade
policies were substantially similar to what Trump pursued in his first
administration—is a catastrophe for American economic thinking.
3.
Most important—and most often overlooked—is the
procedural issue: It is really, really important that presidents not be
permitted to do things beyond the constitutional power of their offices. The
president of the United States already has made war on Venezuela and Iran,
threatened to make war on NATO, and reshaped the tax environment for American
businesses (tariffs are taxes on American businesses) with no
congressional authorization, only by “seeking to exploit questionable statutory
language to aggrandize his own power.” Contrary to the popular assumption,
overpowered executives unmoored from procedural and constitutional restraints do
not produce order by consolidating power—they produce chaos by
making one man’s whimsy the law of the land. Recall that Trump—by his own
account—raised tariffs on Switzerland because his feelings were hurt in a
conversation with the Swiss prime minister, a person who (and I, for one, think
this part still matters) does not actually exist. (There is no
prime minister of Switzerland.) We have separation of powers to prevent
precisely this sort of thing by requiring that big, important changes to public
policy—or big, important actions such as arresting people—require
the cooperation of at least two of our three branches of government.
As a paragon of management excellence once said to an
underling: “A nutless
monkey could do your job.” If the other job candidate is Mike Johnson, I’d
hire the nutless monkey. But perhaps there is someone in Congress—and I do not
much care which party that someone belongs to—who is willing to stand up and do
his goddamned job. Chief Justice John Roberts has done his. Your turn.
And Furthermore ...
I’ll admit being a little irritated with my friends at National
Review when I read this editorial about Virginia and gerrymandering.
In 2024, Donald Trump carried 90
of Virginia’s 133 counties and independent cities. Even in Spanberger’s blowout
victory over Winsome Earle-Sears in the 2025 gubernatorial race, Earle-Sears
won 83 of them. West of the Brunswick County line, covering some two-thirds of
the state’s land mass, Spanberger carried only four counties. She also lost
most of the upper Chesapeake area in the state’s east.
That’s true. But do you know which countries Winsome
Earle-Sears won? The ones without any people in them, which is why she got only
42 percent of the vote. As a native of West Texas, I can assure you that
counting counties does not tell you very much about the people of a state: When
I was at the Lubbock Avalanche-Journal, our sports department covered
something like 40 counties that had a total of maybe 500,000 people in them,
which, according to my English-major math, means an average county population
of not very damned many.
Republicans—beginning with Texas Republicans—need to get
their heads around the fact that they are really good at winning counties that
don’t have very many people in them and really, really bad at winning counties
that have a lot of people in them. The fact that the Texas GOP is going to win both
Hartley County (population 5,382) and Armstrong County (population 1,848) does
not somehow undermine the fact that the Democrats are going to win Harris
County (population 5,221,006) and Dallas County (population 2,656,028). Whoever
the Republicans end up nominating for the Senate race this time around (Ken
Paxton is a corrupt imbecile, so you have to assume he has the inside track) is
going to have to stitch together a lot of little counties to overcome the fact
that the Democrat is going to win every city larger than Fort Worth—and may win
Fort Worth, too. Texas’ four largest cities have about 6 million people in them
altogether, and Democrats are very likely going to win very large majorities of
those city voters as well as majorities of the larger urban counties around
them. I mean, hurray for Deaf Smith and Jim Hogg counties and all, but that
isn’t where the people are.
County-counting is a silly way of arguing about voting,
and about gerrymandering.
Words About Words
A reader sends this in from Axios:
After small businesses sued to
block Trump’s tariffs last year, a quick ruling was expected. The delay
underscores the enormity of a decision that, either way, could rattle the
global economy.
An old bugaboo: It is true that Donald Trump thinks the
Supreme Court decision was an enormity, but I myself disagree. An enormity is
not a big thing, it is an evil thing, a crime: the
enormities of Jack the Ripper, the enormities of Trump’s interior decorator,
the enormity of needless poverty, etc.
A better word there would be importance or gravity.
In Closing
Charles Murray has suggested that a millennium hence what
will be remembered of the 20th century is World War II and the moon
landing. Looking a little less distantly into the future, I think that it is
entirely possible that outside of a few serious scholars, what most educated
people 200 years from now will know about the United States in the 20th
century will consist of: the two world wars and the Cold War, which will be
remembered as essentially one complicated, century-spanning conflict; the
emergence of the internet as a mass medium; and the moon landing already
referenced. If any matters of domestic politics throughout the whole of
American history still register, they will be the American founding itself,
possibly the New Deal, and—almost certainly, I think—the civil rights movement.
What the American founding, the New Deal, and the civil
rights movement have in common is that each changed the fundamental assumptions
about the nature of the relationship between state and citizen in ways that
were significant not only for the United States but for all the world. Liberal
democracy in the form of constitutionally limited government incorporating a
concept of inalienable rights began in Philadelphia and became a global norm
among advanced countries; the New Deal was not the first model of the modern
welfare state—Otto von Bismarck had a program, and Jonah Goldberg has done very
interesting work on the New Deal’s authoritarian cousins—but it was the model
that proved most compatible with the principles of liberal democracy exported
from the United States, having been so successful that 21st century
Europeans can talk about a “Green New Deal” without anybody having to explain
the reference to Spaniards or Belgians; the civil rights movement began with
the question of a single racial minority group in a single country but
established both the principles of dignity and fundamental equality for
minority groups of many kinds (ethnic, religious, sexual, etc.) and provided an
influential working model for a political program to put those principles into
action.
I myself am not an admirer of the New Deal, but, setting
aside the question of personal preferences, these are historically
consequential ways in which the domestic political development of the United
States shaped not only our own republic but the world. These are what will
ensure that the United States will not—at least for a long time—end up with the
epitaph T.S. Eliot imagined for his adopted Great Britain:
And the wind shall say: “Here
were decent Godless people:
Their only monument the asphalt road
And a thousand lost golf balls.”
Some readers were a little surprised that I argued that
history will judge the late Rev. Jesse Jackson kindly in spite of his grifting,
his philandering, and his troublesome record of antisemitism. The Rev.
Jackson’s sins were common, the sort of thing that happens every day, but the
civil rights movement was not the sort of thing that happens every day,
and the Rev. Jackson’s historical significance proceeds from his association
with that series of events. The fact that Mohandas K. Gandhi was a health crank
and a little bit of a sexual weirdo has not much diminished his reputation save
among certain historical specialists; Thomas Jefferson’s contemptible hypocrisy
on the matter of slavery is consequential not because contemptible hypocrisy per
se is interesting, which it isn’t (it is as common as fleas) but because of
how it colors our understanding of the universalist principles he championed;
the Rev. Jackson’s girl-chasing and featherbedding are lamentable, but also
banal and ordinary, and probably will have very little effect on his historical
standing—less even than the Rev. Martin Luther King Jr.’s adultery has had on
his. Admirers of Donald Trump who profess to be shocked and offended by the
Rev. Jackson’s significant moral shortcomings are, of course, beneath contempt,
but we may take some comfort in the fact that none of these ignoramuses will
have very much influence on how history is written.
“Is it your reputation that’s bothering you?” Marcus
Aurelius asked himself. “Think of how soon we all will be utterly forgotten.
The abyss of endless time swallows all. Consider the emptiness of those
applauding hands and remember that the people who praise us are capricious and
arbitrary.”
It is worth thinking a little more about the fact that so
many of the main figures of the civil rights movement were religious leaders,
Christian and Jewish. The Rev. Jackson may have seemed to have forgotten his
vocation from time to time, but, at his best, he made clear the biblical
context of his times and his project. Recalling the death of King, Jackson
cited Genesis and the story of Joseph, whose brothers said: “Behold, this
dreamer cometh. Come now therefore, and let us slay him, and cast him into some
pit, and we will say some evil beast hath devoured him. And we shall see what
will become of his dreams.” Launching from there into a sermon in
which he argued that King’s famous line about “the content of their character”
was being used in a way that let the world off too easily, the Rev. Jackson
insisted that justice only comes
with the sacrifice of
blood—Schwerner, Goodman, Chaney—two Jews, a black, and Viola Liuzzo. And
churches bombed and dogs biting flesh and the horses kicking people. Through
the rush and the blood of it all, and the lives lost, and sacrificed, martyrs,
we wrote the Voting Rights Act in blood. It was co-signed. And Mr. Johnson
said, “We will lose the South for 25 years, but we must say now ‘We Shall
Overcome’ together.”
Dr. King would still be around
here preaching if he had just dreamed abstract, non-threatening, conservative,
privatized dreams. He changed the law. ... It was always a call to action, a
challenge, a threat to the status quo, to Pharaoh, to Nebuchadnezzar, to George
Wallace, to Bull Connor—challenging some present, powerful, oppressive force.
One might criticize the Rev. Jackson for being too much
the politician and too little the man of the cloth, for thinking and
speaking—and preaching—almost exclusively about the affairs of this world, and
not infrequently in a way that served his own ambitions. But there is a place
for charity here (forgive us our trespasses, etc.) as well as for reality—and
the reality of Jackson’s life was in many times and places extraordinarily
brutal and ugly:
My father got off the train in
Washington coming home from the Second World War, but, going south to Virginia,
he had to sit behind Nazi prisoners of war because of skin color. My high
school class could not take its picture on the lawn of the state capitol. Dogs
could.
Jesse Jackson famously got a “D” in preaching when he was
in seminary, and he himself observed that there was little if any difference
between his sermons and his political speeches. If his ministry was not always
directed at otherworldly heights, perhaps it was because he was thinking of
that state capitol and what the men who worked there could do to him and had
done to him. The world weighed on him. It was not theology that cost John the
Baptist his life but political criticism—there are precedents for a ministry
such as Jackson’s.
"After all these years, what remains for me, is God
is a source of mystery and wonder,” Jackson said toward the end of his life.
“Scripture holds up. The righteous are not forsaken.” The Rev. Jackson now has
gone to face a judgment beyond the judgment of history—in the one court in
which we are all truly equal, because we are all equally condemned save for
that borrowed righteousness in which Christians place their hope. “I will have
mercy and not sacrifice, for I am not come to call the righteous but sinners to
repentance.” Let us hope that Scripture does indeed hold up, such that it is
not only the righteous who are not forsaken but also the ordinary hapless
fallen sinners chained to transgressions that are not even grand but petty and
venal and embarrassing—meaning you and me and the late Rev. Jesse Jackson.
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