Presidential limits throughout history

Dear Readers, The United States Supreme Court speaks with certainty in Learning Resources, Inc. v. Trump.  A 6-3 majority opinion authored by Chief Justice Roberts holds that explicit Congressional grants a President authority to impose tariffs.  Oral arguments foreshadowed this result; this may be one of the most consequential Supreme Court decisions in decades.

How we got here is President Trump’s abusive interpretation of the International Emergency Economic Powers Act (IEEPA) (1977) as granting him executive authority to order tariffs.  In doing so, he was not using his Article II presidential authority; he was interpreting the IEEPA as a congressional delegation of its (exclusive) Article I, Section 8, Constitutional taxing authority.  In other words, President Trump did not have any Constitutional tariff-making power; he claimed it from a 1997 statute granting the President vague emergency powers.

There have been other times in our country when a President has clearly overstepped the Constitution.  About every 50 years or so, the Supreme Court recalibrates our separation of powers.

This trend-line began in the famous case of Marbury vs. Madison (1803).  Chief Justice Marshall established the right of the courts as the final arbiter of the Constitution and declared that James Madison (at President Jefferson’s urging) had illegally refused a government appointment.

Sixty-odd years later, the Court (Ex parte Merryman (1861)) ruled that President Lincoln had illegally suspended the right of habeas corpus without Congressional permission.  President Lincoln claimed this was a power adjacent to his war powers during the Civil War.

In the mid-1930s, the Court initially killed President Roosevelt’s New Deal legislation, only to make a famous “switch in time, saves nine” about-face to support it.

The Korean War strained our tired economy two (2) decades later.  In the midst of the conflict, the United Steelworkers went on strike.  President Truman seized the steel mills on the premise that he had the right to ensure production of war-making ordnance proceeded unabated.

The Court slapped him back in its opinion in Youngstown Sheet & Tube Co. v. Sawyer (1952).  Justice Robert Jackson, fresh from his role as the chief prosecutor at the Nuremberg Trials, drew a line on Presidential overreach, writing, “I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.”

In many ways, the spirit of Justice Jackson loomed over Chief Justice Roberts’ majority opinion in Learning Resources.  He finds wisdom in Justice Jackson’s observation, “Emergency powers … tend to kindle emergencies [and] afford a ready pretext for usurpation” of congressional power.  In this sense, unilaterally interpreting a statute to birth a Presidential power not explicitly given by Congress is the pathway to authoritarianism.  He observes, “When Congress grants the power to impose tariffs, it does so clearly and with careful constraints.”

In his concurring opinion, Justice Gorsuch (maybe surprisingly) adds grit to the majority decision in a lengthy concurring opinion.  He harkens back to the founding of our country, our struggle against “taxation without representation.”  For this reason, we vest taxation authority solely in Congress.  The danger of inadvertently divesting the sole right is that “retrieving a lost power is no easy business in our constitutional order.”  He concludes, “Our cases hold a clear statement is required to support a claim to an extraordinary delegated power.”

This is also an echo of Justice Jackson’s observation that legislation is messy, cumbersome, but necessary.  This majority opinion should be a “kick in the pants” to Congress – act! 

The consequences are profound.  President Trump, having illegally imposed his tariffs, has authorized our government to steal from companies and us.  He has spent some of the ill-begotten tariff revenues.  

Governor Pritzker has filed suit to recover over $8 billion of tariffs paid by Illinois residents.  Maybe the first of hundreds of similar lawsuits.  This impending legal chaos is what impressed Justice Kavanaugh to dissent; multitudes will be stepping forward to claw back tariffs directly or indirectly paid (in the higher costs of goods).

Legal denizens absorb Supreme Court opinions like water; the general public typically shrugs.  We cannot have Presidents seizing power from Congress; this is the path to tyranny.  

Ironically, in the span of two (2) years, this Supreme Court has gone from elevating a President above the law, in granting extra-statutory immunities, to then shackling a President from clearly usurping Congress.  Maybe the Roberts Court recognizes its folly.  The Legal Resources opinion redeems our Constitution.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.