Tariffs, Presidents, and Courts

And what costume shall the poor girl wear
To all tomorrow's parties
A hand-me-down dress from who knows where
To all tomorrow's parties
And where will she go and what shall she do
When midnight comes around
She'll turn once more to Sunday's clown
And cry behind the door

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With the previous president in office, I wrote the US was in extra-constitutional and post-constitutional times. This included many matters, but none greater than the concentration of power in the presidency. History is clear, republics end not in anarchy, but despotism. “Caesarem se, non regem esse,” thus was born a new autocratic title, passed down across the ages, all the way to Czar and Kaiser. Over the last decades, how often has the American political class addressed some concern by appointing a “Czar”? Caesar resurrected and unbound, so to speak.

The concentration of power in the presidency is not new. Fifty years ago, Arthur Schlesinger wrote The Imperial Presidency. But one could trace republican degradation through the growth of presidential power starting as far back as Mr. Lincoln or even further. Historian Gore Vidal amusingly and astutely noted, “Republics are social anomalies, as Thomas Jefferson must have suspected when he claimed to see, off there in the distance, no larger than a Federalist's head, the minatory shape of the despot's crown.”

So, it’s been amusing watching a stereotypical old fat man, sitting in the Oval Office, signing, with a signature he no doubt spent years practicing, executive decrees as if they have the force of law – Trumpem se, non regem esse. When people have asked me about these various bolts from Olympus, I reply, “Well he can’t do that, though maybe they’ll let him.” So it’s entertaining to see the Court of International Trade stop the president’s tariffs (though an appeals court immediately stayed that action). Don’t get me wrong, I’m not anti-tariff. I don’t believe global trade should be exclusively run by a handful of gargantuan corporations arbitraging labor costs and environmental destruction across the planet for their own profit. Well thought tariffs can not only be practically for the good, but a necessity from contemporary, global environmental, economic, and political perspectives, though sometimes, you just gotsta take what you can get.

However, as the court notes, questions of tariff validity are besides the point here. The only question is does the president have authority to impose? It’s clear to the court, and really to anyone caring to look, no he does not. The decision is worth reading. It has good historical narratives on various aspects of both tariffs and the rise in presidential power, including a few unintentional, very funny lines. Most amusingly, the decision notes a precedent, “For example, the court stated that ‘[t]he mere incantation of ‘national emergency’ cannot, of course, sound the death-knell of the Constitution.’” Isn’t it grand a court once thought it necessary to state that? But as the decision lays forth, over the course of the last century, claims of “national emergency” have been used to enact an ever greater variety of presidential nonsense.

The court’s decision starts with their conclusion, “The Constitution assigns Congress the exclusive powers to ‘lay and collect Taxes, Duties, Imposts and Excises.’”And honestly, in a document written by lawyers and far too often badly interpreted by other lawyers, it’s pretty unequivocal on this matter. Nonetheless, the court precedes to give the history of how unequivocal specificity gradually gets parsed into infinite ambiguity, such is the fate of a republic where lawyers gain far too much power.

Without going into great detail, the nut of the matter traces back a century. “In 1917, Congress passed the Trading with the Enemy Act (‘TWEA’) to grant the President powers to regulate international transactions with enemy powers following the entry of the United States into World War I.” Hey, what price a constitution when fighting the Huns? It’s ironic in a decision cataloging emergency as necessity, never cited is the constitution’s main designer, James Madison’s Federalists warning of perpetual declarations of emergency as fatal to any republic.

Skipping ahead, the court addresses the president’s claim of authority behind his actions, specifically “The National Emergency Act (1976)”. The court states the“act provided for the termination of all existing emergencies” – funny, funny stuff. Anyway, the court quite rightly rules the president's claiming emergencies gives him no tariff imposing authority, and then rightly noted, if you believe in such things as constitutions and separations of power, the Congress “may not transfer to another branch powers which are strictly and exclusively legislative.”

So, good for the court, however, anyone thinking the courts will be the savior of our, in so many ways, deeply archaic constitution and its established institutions, should think again. For example, and it’s one of any number, remember the Supreme Court’s most recent extra-constitutional action of choosing a president with Bush v. Gore. Even more importantly, over the course of the republic’s history, of the three branches, the courts have been essential to empowering our leviathan corporations. Our constitution is spectacularly failing in the single greatest necessary design of any self-government – holding power accountable.

The great democratic thinker Hannah Arendt stated it’s been extremely detrimental to American politics that we gradually lost the understanding of our revolutionary beginnings. In this she didn’t mean the idea of taking up arms or overthrowing despots, but our increasing political inability to “begin:”

“Perhaps the best illustration within the arena of Greek politics that freedom of action is the same thing as starting anew and beginning something is the word archein means both to begin and to lead. ...The same linkage between being free and beginning something is found in the Roman idea that the greatness of the forebears was contained in the founding of Rome, and that the freedom of the Romans always had to be traced to this founding—ab urbe condita—where a beginning had been made.”

In politics, revolutionary ethos is concern for beginning, a perpetual restructuring of what exists into new institutions and processes. In ways, it is the antithesis of legal precedent, of systems drowned in legalize and reinterpretation, eventually leading to atrophy. Arendt also noted with America’s loss of its founding revolutionary ethos, that only in the courts, and most specifically in the Supreme Court, resided an ability to restructure the constitution. Make no mistake, the Court is the most anti-democratic institution of a federal government structure that was at best ambiguous about democracy. At this point, it is simply incredulous to believe democracy, self-government, will be saved or revived by our increasingly archaic institutions. A new beginning is necessary.

Of America’s founding pantheon, Jefferson was the most democratic. He is in fact one of history’s greatest democratic thinkers and enactors. Twenty-five years after the constitution’s adoption, Jefferson wrote, “laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

Today, the constitutional coat fitted for our republican adolescence by our not entirely barbarous ancestors, not simply constrains self-government, but strangles it.

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