By Matthew Mitchell
Sunday, February 22, 2026
The Supreme Court has ruled that President Donald Trump’s
“emergency” tariffs are unconstitutional.
If we were inclined to keep
the republic that Ben Franklin and his colleagues imparted to us, that
would be that. Trump would concede that the Constitution means what it says
when it grants Congress—and Congress alone—the “power to lay and collect taxes,
duties, imposts, and excises.”
Congress, meanwhile, would reclaim its power. It could
use it in one of two ways: either giving the president the tax
on Americans he so craves, or declining to do so. Either way, in the words
of Justice Neil Gorsuch, it would “tap the combined wisdom of the people’s
elected representatives, not just that of one faction or man.” How quaint.
Ideally, everyone would grant that there is some virtue
in preserving the basic elements of a republican system: that is, a system in
which elected officials have certain limited and enumerated powers granted
through the Constitution. And any power not explicitly granted to one branch of
the government or another would be reserved for the people or the states,
respectively.
But, alas, I fear that few in Washington are all that
interested in keeping this kind of republic. And so now we wait to see how cute
the president tries to get.
Getting cute.
Two centuries of trade research have shown Adam Smith to
have been correct when he declared, “Nothing, however, can be more absurd than
this whole doctrine of the balance of trade.” Trump has evidently weighed this
research and rejected it. And he’s already shown that he’s not inclined to wait
for Congress to delegate tariff powers to him.
Though the Supreme Court ruled that he could not use the International
Emergency Economic Powers Act of 1977 (IEEPA) to levy tariffs, there are other
statutes that allow the president limited tariff authority. On Friday—mere
hours after the court ruled—he signed an executive order imposing 10 percent
tariffs on the entire world under Section
122 of the Trade Act of 1974. A few hours later he thought better of it and
raised
these rates to 15 percent.
Section 122 allows him to impose across-the-board tariffs
of up to 15 percent to address “balance of payments” issues. Never mind that
the balance of payments deficit is currently zero. And never mind that these
Section 122 powers were designed “to prevent an imminent and significant
depreciation of the dollar in foreign exchange markets.” This is not about to
happen. And, ironically, Trump has long sought depreciation of the dollar.
These Section 122 tariffs, however, can only last 150 days. After that, he
would need to turn to some other authority.
Next, he might claim that Section
301 of the Trade Act of 1974 permits him to impose tariffs on any country
that has engaged in “unreasonable” or “discriminatory” trade practices. What is
an unreasonable or discriminatory trade practice? You might think it is a
“practice,” an actual policy adopted by another government. But in Trump’s
mind, it is unreasonable any time Americans choose to buy more from the
citizens of another country than those citizens buy from us. That, after all,
is how he arrived at a 46 percent “reciprocal tariff” on goods bought from
Vietnam even though the Vietnamese government imposes only a 9.5 percent duty
on goods bought from the US.
In any case, a faithful reading of the statute would
necessitate a careful and lengthy investigation by the U.S. trade
representative before any tariff could be imposed. But Trump could get cute
with that too, ordering an expedited and cursory analysis. We’ll have to see
how far the courts let him get with that.
Next, he might try to use Section
232 of the Trade Expansion Act of 1962. This allows tariffs on goods that
pose a threat to the national security of the United States, but requires a
careful Commerce Department investigation into what constitutes a threat. Does
Europe’s reluctance to hand over Greenland constitute a threat? Secretary
Howard Lutnick’s Commerce Department may well see it that way. Don’t forget
that last October, Trump imposed an additional 10 percent tariff on Canadian
imports—citing IEEPA authority—because a Canadian premier had aired a
commercial featuring Ronald Reagan saying some critical things about tariffs.
Speaking of Greenland, Trump never bothered to cite any
authority for his threatened tariffs against Denmark, Norway, Sweden, France,
Germany, the U.K, the Netherlands, and Finland for their refusal to let him
annex an ally’s territory. So, he may simply try to impose tariffs without any
authority. Cute.
The origins of an unbound presidency.
What is wrong with cute? Why should we care? Our duly
elected president seems to genuinely believe in tariffs. It may be the one
position he has consistently held throughout his decades as a public figure.
And voters overwhelmingly chose him in 2024. Don’t they deserve to see their
democratically selected policies enacted?
For decades now, there have been two unsatisfactory
answers to these questions.
The first, supplied by progressives operating in the
tradition of Woodrow Wilson, is that cute is fine. Wilson thought
that “[t]he makers of the Constitution constructed the federal government upon
a theory of checks and balances ... but no government can be successfully
conducted upon so mechanical a theory.” Rather than think of the government as
a machine, he preferred to think of it as a living
being, and “[n]o living thing can have its organs offset against each
other, as checks, and live.”
Wilson was motivated by an outsized view of his own
intelligence. Five years before he ascended to the presidency, he wrote,
“The President is at liberty, both in law and conscience, to be as big a man as
he can. His capacity will set the limit.”
If this sounds familiar, recall that Trump recently told the New
York Times that his power is limited only by “My own morality. My own
mind. It’s the only thing that can stop me.”
But long before it captured Trump’s imagination, Wilson’s
vision of an unbounded presidency stirred the imagination of the left. In an
unprecedented exercise of power, Wilson issued more than 1,800 executive
orders, nationalized railroads, and imposed price controls. He also segregated
the federal labor force, suppressed free speech, and rounded up thousands of
suspected socialists, but those achievements of the progressive era are less
celebrated by today’s modern progressives.
The unbounded presidency also inspired Franklin D.
Roosevelt to close banks, to confiscate gold, and to intern Japanese Americans
via executive order. It gave President Barack Obama, frustrated by Congress’
opposition to his agenda, the courage to declare
in 2014: “I’ve got a pen, and I’ve got a phone.” And it gave President Joe
Biden the notion that he could cancel up to $430 billion in debt owed to the
American taxpayers without bothering to seek Congress’ approval.
The Constitution, ineptly defended.
The great 19th-century French economist
Frédéric Bastiat once warned that “the worst thing that can happen to a good
cause is, not to be skillfully attacked, but to be ineptly defended.” Which
brings us to the second answer to what’s wrong with cute.
Each time a Democrat asserted unbounded presidential or
governmental power, there was almost always a Republican there to counter it.
Obama’s 2014 pen remarks were especially successful in rousing Republican ire.
House Speaker John Boehner declared,
“I would remind the president he also has a Constitution and an oath of office
that he took” while Sen.Ted Cruz lectured:
“‘I have a pen, and I have a phone,’ is not how laws are made under our
Constitution. A strong president governs by consensus and persuasion, not with
a pen and a phone. Americans deserve a President who will work in good faith
with their elected representatives to follow the law of the land and to pass
laws that reflect the will of the people.”
These are stirring statements. But the Constitution would
not be so ineptly defended if Republicans could muster the courage to repeat
them today to their own man.
To his credit, Cruz has often criticized the wisdom of
Trump’s tariffs. But so far, he hasn’t brought himself to challenge the
constitutionality of them.
His newfound reticence is nothing compared to House
Speaker Mike Johnson, however. In January, Johnson declared:
“I have no intention of getting in the way of President Turmp and his
administration. … He has used the tariff power that he has under Article II
very effectively.”
Huh? Which Article II power is he talking about? Does he
think our keyboards lack a Ctrl-F?
A better defense.
It is clear now that many Republicans saw constitutional
fealty as a nice talking point, a way to skewer Democrats for their unpatriotic
rejection of the American founding.
But it appears that some Republicans’ own
constitutionalism runs about as deep as Trump’s understanding of economics.
They favor the Constitution when it thwarts the Democrats. They favor it
because it is old and vaguely patriotic. Its antique and loopy cursive make for
a beautiful backdrop for a speech. Like the flag itself, it’s the kind of thing
you can hug
(awkwardly). But it isn’t the kind of thing you think about.
But let’s think about it.
Few people thought as clearly or as thoroughly about the
wisdom of constitutions as the late political economist James Buchanan.
When talking about constitutions, the 1986 Nobel laureate liked to invoke
Ulysses tying himself to the mast. Ulysses didn’t tie himself to the mast
because he wanted to embarrass the Trojans. Nor did he do it because he wanted
to inspire his men or remind them of their patriotic forefathers.
He did it for far more practical reasons. He knew that he
would be tempted by the siren’s song. He knew he would go mad with lust, and he
wanted to stop himself.
And so it is with political power. Government is not, as
former Rep. Barney Frank once naively put it, “the things we choose to do
together.” We do all sorts of things together. We start businesses together. We
play softball together. We fish, and we pray, and we get drunk at concerts
together. But none of those things is government.
When we form governments together, we assert the power to
legitimately
coerce our fellow citizens. No one can make you join the softball league.
But government can make you pay your taxes, buy health insurance, or register
for the draft. Try selling loose
cigarettes on a Staten Island sidewalk and men with guns may stop you.
Frank had it exactly backward. Government isn’t what we choose
to do together. It’s what we say you don’t have a choice in. Like paying
your taxes!
Which brings us back to the Supreme Court’s decision. The
framers understood that the power to tax
is the power to destroy. And so they decided not to give that power to
one man. After all, he might wake up one day and get offended by a TV
commercial featuring a (more) popular Republican president. Or he might decide
that a Swiss
politician rubs him the wrong way. Those would be silly, arbitrary, and
capricious reasons to coerce money from Americans.
So, the framers wisely gave the power to tax to our
Congress, imperfect as it may be. They made it difficult for Congress to
exercise this power—requiring legislation to pass both houses and constituting
each house differently—because they wanted to ensure that this power wasn’t
abused.
But the system works only if we take the Constitution and
our commitment to republican government seriously. The Constitution is not, as
progressives in the Wilsonian mold assert, an antiquated document. Nor is it,
as some Republicans seem to think, a prop.
We may yet keep our republic if we can resist the urge to
get cute.
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