The downside of life tenure for judges is that it makes them unaccountable. The upside of life tenure for judges is that it makes them intellectually independent. Anyone who thinks that Donald Trump’s appointees shed their intellectual independence when the president is concerned should listen to Justice Neil M. Gorsuch’s questioning of the administration about the legality of its tariff policy.
Neil Gorsuch delivered the most withering questions in the tariffs case
The conservative Supreme Court justice was tough on Trump’s lawyers and spoke up for a fading Congress.
Gorsuch was Trump’s first high-court nominee, and by some measures the most conservative. He has joined the decisions Democrats most abhor, including overturning Roe v. Wade and granting presidents immunity from some criminal prosecutions. But on Wednesday, he was the justice who subjected Solicitor General D. John Sauer to the most withering questioning on Trump’s usurpation of Congress’s authority over trade.
The Constitution explicitly gives Congress control over the country’s tariffs and trade. The Trump administration’s position is that Congress forfeited its control in 1977 when it passed the International Emergency Economic Powers Act. The law doesn’t mention tariffs or trade but lets the president “regulate” economic transactions with foreign parties in emergencies. Voilà, the administration says: Trump can rewrite Congress’s border tax rates and impose worldwide tariffs that will supposedly cut the deficit by $4 trillion.
Gorsuch sounded skeptical that Congress had authorized such a thing. Indeed, he sounded skeptical that Congress could authorize such a thing. Let’s say, the justice proposed, that “Congress decides tomorrow, well, we’re tired of this legislating business. We’re just going to hand it all off to the president. What would stop Congress from doing that?” he asked Sauer. The solicitor general was forced to admit that there are limits to how much power Congress can delegate to the president, even in foreign affairs.Follow
Protecting the separation of powers — that is, making sure that the legislative branch legislates and the executive branch executes — has long been a conservative project. It’s been a particular preoccupation of Gorsuch, who in 2019 argued that the court should significantly pare back Congress’s ability to delegate lawmaking power to the executive. Liberal justices are usually more lax about delegation, believing that Congress can point to general priorities and “experts” in the executive branch can fill in the details.
Gorsuch does not seem to have wavered from his strict view on separated powers even though it’s the president who appointed him claiming that Congress gave its powers away. The constitutional view the Trump administration is embracing, Gorsuch said, amounts to a “one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives.”
As Congress hands the executive more emergency powers, emergencies become the norm rather than the exception. Soon the executive, rather than Congress, is actually making the law — and enforcing it at the same time. Former Trump adviser Steve Bannon depicted the problem colorfully last month when, according to the Wall Street Journal, he “likened Congress to the Duma, the Russian assembly that is largely ceremonial.”
A majority of the court seemed alert to this threat. One wrinkle is that the statute at issue clearly authorizes the president to impose embargoes. Some justices seemed to struggle with the question of whether tariffs are milder than embargoes and therefore permissible as well. Wouldn’t it make sense, Justice Amy Coney Barrett asked, that Congress would want the president “to use weaker medicine than completely shutting down trade?”
But embargoes don’t implicate Congress’s power of the purse — by far the most effective check on presidential prerogatives that the Constitution’s framers devised. Moreover, the fact that tariffs are a “weaker medicine” could make them more insidious. If Trump had imposed an embargo on all the countries he has tariffed, he would be immediately accountable for that decision as imports stopped altogether, and markets crashed. Tariffs allow him to raise revenue by stealth without Congress’s approval. That a presidential power is subtler and easier to conceal can make it more, not less, constitutionally problematic.
Looming over the tariffs case is Justice Robert H. Jackson’s 1952 opinion on President Harry S. Truman’s attempted seizure of American steel mills during the Korean War. Jackson ruled against Truman, but he also wrote: “If not good law, there was worldly wisdom in the maxim attributed to Napoleon that ‘The tools belong to the man who can use them.’ We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.”
The independence of Gorsuch and other Republican-appointed justices might be enough to protect Congress, for now, from Trump’s boldest usurpation. But unless members of Congress can find a measure of courage and independence themselves, such a ruling would be only a temporary reprieve.