A US court nixed “reciprocal” tariffs, as institutional checks and balances start to function against Trump’s imperious rule by emergency decree.
When Trump returned to the Oval Office in January this year, he returned with an ambitious agenda.
Many of his supporters pointed out that he had been president before, and it wasn’t so bad (even though it was, by many measures, and he had the worst average presidential approval rating in modern American history).
It was clear, however, that Trump’s agenda this time was much more, shall we say, robust. It was clear that he was a big fan of trade tariffs, as “taxes on other countries” that “make Americans rich”, and could replace income tax and restore America’s manufacturing industry to its former greatness, although those two goals – raising revenue and suppressing imports – conflict.
I wrote that he either misrepresents or misunderstands tariffs. We now know that he is entirely ignorant about trade deficits and trade tariffs, except that tariffs have value as “leverage” to make “deals”.
He was also virulently anti-immigrant, and helped to popularise a racist libel about Haitians eating the pets of civilised Americans. He was openly hostile to the LGBT+ community.
And he promised to move heaven and earth to implement his agenda.
Executive orders
The naïve assumption was that America’s vaunted checks and balances would restrain Trump’s worst impulses, and all he would be able to do was yank the pendulum back from the left-liberal woke era of politics, and that would be just fine.
When Trump returned to the presidential throne, however, he came to rule as a king. He issued a flurry of executive orders that did not cease, at twice the rate of his most dictatorial predecessor, Franklin D. Roosevelt.
For several of his more far-reaching orders, he declared national emergencies. When he lacked legal powers, Trump conjured up fake emergencies. He declared an immigration emergency, an energy emergency, and a trade emergency – each on more flimsy grounds than the last.
Various laws would grant him emergency powers to make sweeping, unilateral and extra-legal decisions, to force through the agenda that he believes he was elected to achieve.
His supporters cheered his robust action, but failed to recognise the larger threat to America’s constitutional republic. If their political opponents had ruled by decree as Trump is doing, they would have been the first to denounce them as a dictator.
The issue here is not what decisions are being made (though many are both flaky and cruel), but how those decisions are made.
Rule of law
The rule of law is a foundational principle in democratic societies. It means that everyone is subject to the law, including governments, institutions, and individuals. The principle dates back to the Magna Carta of 1217, which for the first time subjected the king to the law.
The rule of law requires that laws are publicly known, and must be clear, accessible and predictable. It requires that they are equally and impartially applied. It requires transparent law-making by an independent legislature that follows due process. It requires that laws are enforced by independent courts that are immune to pressure, especially from the executive branch of government. It requires that laws are respectful of fundamental rights and liberties.
In short, the rule of law prevents arbitrary use of power, upholds justice, and provides a framework for resolving disputes peacefully and fairly.
In the US, the rule of law is established in considerable detail by its Constitution. It separates the powers of the executive, the legislature and the judiciary, and gives each branch the power to oversee, and if necessary, restrict the others. The president has a veto; Congress has oversight powers; and the courts have the power to review executive decisions.
Importantly, both the Fifth and the Fourteenth Amendments to the US Constitution guarantee that individuals – whether or not they are citizens – cannot be deprived of life, liberty, or property without fair legal procedures, and have the right to challenge administrative actions in court.
Emergency
Declaring an emergency is a procedure by which a political executive can suspend the rule of law, in order to make rapid decisions that are urgently necessary to prevent or ameliorate some calamity.
Authoritarian governments often abuse emergencies to push through unpalatable executive actions they would otherwise need to achieve through legislation, or may not enjoy at all.
South Africa’s apartheid government famously used States of Emergency to suppress political dissent and grant executive agencies like the police wide latitude to take matters into their own hands.
In America, it took some time, but the other arms of government are beginning to push back. Several of Trump’s cabinet members have faced grillings before Congressional or Senate Committees, and the courts are also starting to chime in.
Tariffs set aside
Earlier this week, in a dramatic turn of events, a federal court – the usually obscure US Court of International Trade – issued a ruling that overturned all of the tariffs that Trump imposed on what he called “Liberation Day”.
Trump had invoked the International Emergency Economic Powers Act (IEEPA), a 1977 law which has never before been invoked to impose tariffs, and can be invoked only in the face of an “unusual and extraordinary threat” to US national security, foreign policy, or economy.
The court ruled in two separate cases, one brought by businesses and one by states, that the IEEPA does not give Trump ”such unbounded authority and sets aside the challenged tariffs imposed thereunder”.
This applies to all “reciprocal” tariffs on US trading partners, including those on China, but tariffs on specific industries, like automobiles and steel, and against specific Chinese products, were imposed under a different legal authority and will remain in force.
The court did not, sadly, challenge the validity of the premise that trade deficits constitute a national emergency.
“Judicial coup”
Trump’s spokesbots melted down, underscoring the dictatorial beliefs that now prevail in the White House.
“The judicial coup is out of control,” wrote White House Deputy Chief of Staff for Policy, Stephen Miller.
“It is not for unelected judges to decide how to properly address a national emergency,” said White House spokesperson Kush Desai in a statement.
It is, in fact, for “unelected judges” to decide whether or not executive actions are lawful and constitutional. (The judges in this case were appointed by Ronald Reagan, Barack Obama and Donald Trump, respectively.)
Judicial oversight over the executive is a foundational principle of the rule of law. That a president is elected does not give them unchecked power. The entire idea behind a “constitutional republic” is that the constitution places a limit on the power of government to infringe the rights with which all people are born.
Other avenues
It is likely that Trump will try to find other avenues to continue his poorly conceived and economically destructive trade war.
The administration has already filed a notice of appeal, and will likely pursue it all the way to the Supreme Court, where it can hope to receive a favourable hearing.
Failing that, it will return to the pre-emergency status quo, under which Congress has the sole power to impose trade tariffs, and try to smuggle a tariff war bill, or a broad trade power authorisation bill, past the small but pliant Republican majority in the legislature.
That Congress is willing to cede extraordinary powers to Trump is evidenced by clauses in the One, Big, Beautiful Bill like this one: “…no court shall have jurisdiction to review any action taken by the Secretary, the Administrator of the Environmental Protection Agency, or a State or municipal government administrative agency,” regarding mining or drilling leases, permits, or authorisations.
This directly violates the principle that the executive is subject to the law, and its actions subject to judicial review. It therefore violates the rule of law and the US Constitution, and gives administration officials unchecked power to make unchallengable decrees.
Kristi Noem, the Secretary of Homeland Security, has also been taken to task in Congress for deporting people without following due process, which violates the Fifth Amendment (and therefore also Noem’s oath of office), which says, “No person shall be … deprived of life, liberty, or property, without due process of law.”
In the same committee, she was upbraided for overseeing a “regime of cruelty, chaos, and deep disregard for human dignity” on the “pretence of security”, including for cancelling student visas or deporting students without warning, without due process, and without apparent reason.
Pushback
It is unclear whether Congress will, or can, take further action to prevent the Trump administration from “disappearing” whoever they wish, without its victims having any legal recourse, but that there is pushback is an encouraging sign.
Trump has a history of defying America’s courts. He has a history of attacking judges, prosecutors and investigators who uphold and enforce the law. He has won a stunning legal ruling that immunises him from criminal prosecution for any action taken in the course of his duties as president – a level of immunity no president before him enjoyed.
It will be interesting to see whether companies and individuals who paid Trump’s unlawful tariffs, or face higher prices because of tariff uncertainty, will have recourse for economic damages. They should do.
The rule of law is under threat in the US, and if the legislature and judiciary do not both push back against an executive that acts like an imperial dictator, it will suffer irreparable harm.
This will have repercussions far beyond America’s shores, as the US loses the moral authority to restrain autocrats, socialists and theocracies from violating the rights and liberties of their own people in the name of economic planning, immigration control, or whatever other “emergency” they can cook up.
The world’s pre-eminent beacon of freedom, accountability and democracy is at risk of being extinguished. Classical liberals everywhere ought to speak up and defend it.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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Image: The 1886 torch of Liberty Enlightening the World, better known as the Statue of Liberty. It was replaced with the modern version in 1986. Photo by Ad Meskens, under Creative Commons licence.