For decades, conservatives, understanding that liberty cannot exist absent constitutional constraints on government power, have criticized the Supreme Court for creating new constitutional “rights.” Now, the Court has agreed to hear Trump v. V.O.S. Selections, Inc., a case challenging President Donald Trump’s assertion of vast, unilateral authority over tariff rates, a power reserved in Article I, section 8 to Congress alone. The Court’s decision could have a lasting impact on the Constitution’s ability to restrain power and protect freedom. Conservatives must not get squeamish on the Constitution now.
In Federalist No. 51, James Madison famously observed that “if men were angels, no government would be necessary,” and that “if angels were to govern men, neither external nor internal controls on government would be necessary.” However, he concluded, since men are not angels but must be governed by men, the liberty of the people depends on the combination of two restraints on government power: popular accountability and structural constraints.
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When the Supreme Court invents new “rights,” it interferes with the legislative process. In 1973, the Court in its Roe v. Wade decision claimed to locate a right to abortion in the Constitution, which Justice Byron White called in his dissent “an exercise of raw judicial power.” When the Court overruled Roe in its Dobbs v. Jackson Women’s Health Organization decision in 2022, Justice Samuel Alito’s majority opinion recognized that, “at the time of Roe, 30 States still prohibited abortion at all stages.” The Court explained that, in overturning Roe, it was returning “the authority to regulate abortion … to the people and their elected representatives.”
Similarly, when the court invented the “right” to same-sex marriage in its 2015 decision in Obergefell v. Hodges, Chief Justice John Roberts criticized the majority for overstepping its bounds. Despite what he called the “undeniable appeal” of the couples’ arguments in that case, he nonetheless understood that the “Court is not a legislature.” It is the judge’s constitutional responsibility to “say what the law is, not what it should be.”
Just as it is the Court’s job to say what the law is, not what it should be, so it is the president’s job to enforce the law as it is written, not as he wishes it were. These constitutional constraints on government power are, just as much as popular accountability, essential to preserving the liberty of the people.
As noted above, Article I, Section 8 grants Congress exclusive power over federal taxation. Neither the president nor the courts may exercise that power. After all, the Constitution’s framers were writing in the shadow of the Revolutionary War, itself a fight against “taxation without representation.” Under the constitutional system the framers created, the legislature makes the rules and the president executes them. And, to quote Alexander Hamilton in Federalist 33, “what is the power of laying and collecting taxes, but a legislative power.”
Because legislative power is “the power to enact laws restricting the people’s liberty,” Justice Neil Gorsuch has explained, “the framers went to great lengths to make lawmaking difficult.” Congress cannot hand off that power to the president or any other body. As Justice Alito put it, “The principle that Congress cannot delegate away its vested powers exists to protect liberty. Our Constitution, by careful design, prescribes a process for making law, and within that process there are many accountability checkpoints. It would dash the whole scheme if Congress could give its power away to an entity that is not constrained by those checkpoints.”
The president claims that the International Emergency Economic Powers Act gives him the power to unilaterally impose and modify taxes on imports. The statute does no such thing, but, more fundamentally, no statute could do so. Tariffs, like any other form of taxation, are under the sole authority of Congress and, short of a constitutional amendment, Congress cannot give its powers away.
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For decades, conservatives have recognized that limitations on government power are essential to liberty. Conservatives have rightly criticized the court when it has acted beyond its constitutional authority. Now, however, some conservatives appear hopeful that the court will set the Constitution aside when their preferred policy is at stake.
Since the progressive era of the early twentieth century, the left has adopted just such an outcome-based philosophy of government. Conservatives have stood as the last bulwark of the rule of law and the liberty it exists to protect. Now is no time for conservatives to abandon that position.
Timothy Harper serves as counsel of Advancing American Freedom.
