How much shit are the Supreme Court’s Republicans willing to eat for Trump?
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Linda Greenhouse [free link] goes through the many ways in which according to various legal doctrines Republican judges pretend to believe, the tariffs case the Court hears tomorrow is easy and not in Trump’s favor. If this were not already clear, the beginning of the flopsweat-drenched brief filed by the Trump administration filed:
The administration’s opening argument is a bunch of bare assertions that are all ludicrously false — particularly the idea that returning to 2024 levels of tariffs would mean economic ruin for the United States — as well as legall irrelevant. It’s the work of administration lawyers who think that the Republican justices are so deeply in the tank for them that they can afford to insult their intelligence — and the smart money is that they’re right.
Dahlia Lithwick has an entertaining interview with the lead plaintiff in the case, who observes that [Shelley Levine voice] a child would know that these tariffs were not authorized by Congress and the sweeping assertions of executive authority to impose them is flagrantly inconsistent with the separation of powers:
If you read the briefs submitted to the Supreme Court, they go a little further, and they say: This is not really a tax case. This is a case about the president’s right to administer foreign affairs, which is Article 2 in the Constitution. And because Article 2 in the Constitution gives him the right to administer our foreign affairs, that is an independent power that he has. And so, because he’s exercising his independent power, if you read tariff rights into the word regulate, he has the power to do that as part of his power to oversee foreign affairs. That’s their argument.
There are answers to that, but I’d like to actually highlight what an eighth grader might say. Let’s not be a lawyer. Let’s be an eighth grader who just finished the section of history class where they go over “How does the U.S. government work?”
An eighth grader would say: “Isn’t there a problem with that? Remember, we learned that in the American Revolution, they didn’t like taxation without representation. Didn’t they throw tea into the pond somewhere?” Yes, they did. And Mr. Madison said, “No, we’re not going to let the king set taxes on us when we’re not present in Parliament. We are going to organize our government so that no individual can set taxes on Americans. It has to be a legislative process.” That’s why you should read Article 1 before you read Article 2. In Article 1, it says that Congress has a vested power to impose and collect taxes, regulate commerce, and it is assigned the responsibility of drafting and passing legislation. We can call that James Madison’s gotcha. So an eighth grader would say: “Mr. Trump doesn’t have the power individually to impose a tax because he doesn’t like a commercial that’s running on TV.” An eighth grader would say: “Sorry, I didn’t see that in my textbook.”
Trump above all else likes to humiliate his lickspittles. Many who are in a position to push back just quickly cave instead; we’ll see if the Supreme Court is among them by putting Trump’s desires above both the law and even the longer-term fortunes of the Republican Party.