What the Supreme Court’s tariffs ruling says about judicial power

Many pundits in the media celebrated the ruling, and on this, they were joined by conservatives committed to the principles of free trade. Whether for partisan or ideological reasoning, or perhaps a mixture of both, defeats for the president and for industrial protection were a cause for celebration.

These reactions were completely understandable. More puzzling was the sentiment among some that the court had vindicated the legislative authority. Congress has been diminished, so goes this line of thinking, and it is good that the court has clawed back some of the legislature’s power from an overweening executive. Never mind the fact that Congress was not a party to this suit at all. It was the president who had been sued, and it was the court that was going to decide the merits of the case. Congress was like a child in a custody hearing, with the executive and judicial branches fighting over who should be its primary guardian.

Setting aside the substance of the case, we’re confronted with not just a question of executive power, but judicial power: Is a fight like this really the proper domain of the Supreme Court?

No doubt, the court believes it can render a judgment, but that reflects the seemingly limitless ambitions of the modern Supreme Court. Even as it has shifted from left to right over the last 30 years, it has hardly lowered its sights. There seems to be no question regarding the Constitution that the court doesn’t presume merely to offer an answer, but a definitive answer, for which the only recourse is a constitutional amendment. And so it goes with matters of legislative-executive relations, and the checks and balances our system creates to regulate them. The president, in this case, overstepped his boundaries. And as the court claims the right to play interbranch traffic cop, it placed him back in his proper lane.

While this presumption is uncontroversial among legal scholars, some of us who spend our time thinking about the political theory of the Constitution are more dubious.

In a recent book titled The Constitution of Conflict, Thomas Bell of Knox College argues that today’s court fundamentally misunderstands the very nature of checks and balances. They do not amount to a precise set of rules about how power is shared, a list of “do’s” and “don’t’s” for Congress and the president to follow, lest they overstep their boundaries. They are, rather, a set of institutional powers granted to each to use as tools for negotiating with one another to solve problems.

The great Founding-era text on checks and balances, Federalist 51 by James Madison, does not once mention the court, except indirectly. Instead, Madison conceptualizes checks and balances as granting the executive and legislative branches “the means and motives to resist the encroachments of the others. The provision for defense must … be made commensurate to the danger of the attack.” From this perspective, the Court really has no role to play. The two branches work out their relationship, and if one breaches trust, the other can respond.

It is hard to square the court’s role in checks and balances at all. The modern view of the judiciary is that, while the other branches may determine the meaning of the Constitution, decisions made by the nine lawyers in black robes are final and can be overturned only by a constitutional amendment or by the court itself. That is really hard to reconcile with Madison’s framework in Federalist 51. Neither the president nor the legislature has any means of defense against an attack by the court, save of course the potentially destabilizing move of ignoring it altogether.

One response to this line of reasoning might be that the rules established by the IEEPA favor the president so overwhelmingly that the court had no choice. If Congress does not like the authority the president has asserted, it must pass a law over his veto striking down the tariffs, — practically impossible. That is true, but it reflects how truly meddlesome the court has been over the generations. When it was initially drafted, the IEEPA included a legislative veto, enabling Congress to reject presidential assertions of tariff authority without having to override his veto.

However, the court struck that mechanism down as an unconstitutional separation of powers violation in INS v. Chadha (1983). The legislative veto is exactly the sort of judicial meddling that Bell takes issue with. It was a fairly negotiated compromise between legislative and executive authorities to balance the expediency of presidential action against the need for legislative input. Yet because it did not fit the court’s understanding of checks and balances as a justiciable set of principles, it was eliminated. So the court had to swoop in to save checks and balances in Learning Resources, but only because it had meddled with the underlying law.

That is par for the course with the Roberts Court, which appears set to strike down portions of the Federal Trade Commission Act of 1914. That law established the Federal Trade Commission as a politically independent branch, with limits on the president’s power to remove its commissioners. Oral arguments held earlier this year in Trump v. Slaughter strongly suggest a majority of the court thinks the original arrangement is unconstitutional — never mind that the original law is over 100 years old and had been upheld in a previous case. The court, as always, claims the unbounded authority over the meaning of the Constitution, even on matters that have been settled for more than a century.

It is as if the entirety of the American constitutional system now must be read through Alexander Hamilton’s Federalist 78, which introduced the principle of judicial review: The court gets the last say on all matters in how power is distributed in our republic. This development has happened in fits and starts over the last 100 years, at a pace so slow that it makes the court’s capriciousness hard to notice. But capricious it is. A republic of 350 million people turns on the political orientation of just five, unelected judges. Not even the most aristocratic of the Founders would have concentrated so much power among so few.

Conservatives have generally celebrated the modern Roberts Court, despite intermittent grumbling about this or that ruling. But they should take note that the worm can always turn. The Roberts Court has not used its power to demobilize the judiciary’s role in the modern polity. It has, instead, used that role to stamp a decidedly conservative imprint upon it. In so doing, it has affirmed sweeping claims made by the Earl Warren and Warren Burger Courts that the judiciary can do just about anything it wants.

Consider the Slaughter case: This might be a victory for a conservative understanding of executive power, but it is also a victory for judicial power, which could ultimately work to the advantage of the left. One wonders what will happen if a succession of Democratic presidents reshapes the court in a liberal direction, and the Roberts Court becomes the Ketanji Brown Jackson Court.

A sensible response to such a hypothetical is: The liberals are going to do what they’re going to do, anyway, so conservatives should make hay while the sun is out. Maybe so. But in asserting such sweeping authority, the current court is preventing an alternative dynamic from developing and maturing. What if, for instance, the court had decided in Learning Resources not only that it has no business in interbranch disputes where the president and Congress are completely competent to the question, but that it erred in Chadha and restored the legislative veto? What if it took seriously the views of Bell and others who think the court’s meddlesomeness has diminished the political process, preventing the traditional political pathways of checks and balances from resolving disputes? Maybe that process could be rebuilt so that by the time the left acquires control of the Court, the other branches have been allowed to assert themselves once again.

WHAT NOVEMBER’S ELECTION RESULTS SAY ABOUT BOTH PARTIES 

That, of course, is not going to happen. The justices of the Roberts Court are supremely confident in both their competency and authority to arbitrate these disputes, regardless of what the underlying political theory of the Constitution might suggest. And the conservative legal movement is, of course, thrilled as thrilled can be — no doubt in part because it means that the critical debates about the Constitution remain fundamentally legal rather than philosophical and political.

The former is in the wheelhouse of the legal community, while the latter is not. But if history is any guide, this conservative moment will not last. The mood and ideology of the court shift slowly, but they do shift. Sooner or later, rulings like Learning Resources and potentially Slaughter, which entrench a vast understanding of judicial authority, could be used against the Right.

Jay Cost is the Gerald R. Ford senior nonresident fellow at the American Enterprise Institute.