Keeping the stolen proceeds

The Supreme Court striking down Trump’s IEEPA tariffs is certainly a better outcome than the alternative. But its importance is also going to be exaggerated by people anxious to see the Court as a much more potent check on Trump (and a much less partisan institution) than it is actually going to be. As Josh Marshall observes, there are two central facts to be kept in mind. First, this was a case of the Court being ideologically cross-pressured (siding with Leonard Leo isn’t exactly a new dawn at One First Street.) And second, the fact that the tariffs were allowed to remain in place for so long in spite of the Court’s generally aggressive use of the shadow docket shows Trump still getting special treatment from his friends:

Indeed, today’s decision is actually an indictment of the Court. These tariffs have been in effect for almost a year. They have upended whole sectors of the U.S. and global economies. The fact that a president can illegally exercise such powers for so long and with such great consequences for almost a year means we’re not living in a functional constitutional system. If the Constitution allows untrammeled and dictatorial powers for almost one year, massive dictator mulligans, then there is no Constitution.

Part of the delay of this ruling is the fact that most major corporations were afraid to bring litigation because they didn’t want to go to war with the president. But that’s also an indictment of the Supreme Court’s corruption. Because they made clear early on that there was little, if any, limit they would impose on Trump’s criminality or use of government power to impose retribution on constitutionally protected speech or litigation. So that’s on the Court too. But it’s only part of the equation. The Court also allowed the tariffs to remain in place while the government appealed the appellate decision striking down the tariffs back in August. Let me repeat that: back in August, almost six months ago.

In other words, most of the time in which these illegal tariffs were in effect was because of that needless stay. The logic of the stay was that deference to President’s claim of illegal powers was more important than the harm created by hundreds of billions in unconstitutional taxes being imposed on American citizens. It’s a good example of what law professor Leah Litman — one of the most important voices on the Court’s corruption — earlier this morning called the Court’s corruption via “passivity,” empowering anti-constitutional actions through deciding not to act at all or encouraging endless delays it could easily put a stop to in the interests of the constitutional order.

As Marshall says, this is a case where the balance of equities pretty clearly favored a stay, given how difficult it’s going to be for people and entities who paid the illegal taxes to be made whole:

Officials across the Trump administration are scrambling to devise legal strategies that would allow the government to keep billions of dollars in tariff revenue the Supreme Court said was illegally collected.

Early ideas include policies to discourage companies from claiming their refunds, prevent the government from paying the money back or otherwise preserve at least some of the tariff revenue, according to five people familiar with the conversations, granted anonymity to discuss them.

And needless to say, even if some companies are able to get the money back the consumers the costs were largely or entirely passed on to are permanently screwed. There’s no chance that the tariffs would have been in place for six extra months under a Democratic president, and the costs of this differential treatment are far from minor.