Donald Trump is in no mood to relent. Despite several court rulings against his tariff tactics, the US president recently said that he would go to the Supreme Court immediately to get an early decision. “If you took away tariffs, we would end up being a third-world country,” he warned. Earlier, he maintained that a no-tariff regime would be a “total disaster,” and make America “financially weak.” In his mind, the fear is that his grand, sellable and voluble strategy to ‘Make America Great Again’ may turn into a puny, whimpering and untouchable one, ‘Make America Gyrate Again.’
The president is confident about the Supreme Court. The reason is simple. During his first term, Trump transformed the legal system in the country. In a major overhaul, he filled the courts with Republican (his party)-appointed judges. In the Supreme Court, the ratio is 6:3, and in favour of the Republicans, who enjoy the conservative majority. It is more likely that the tariff appeal will be heard by a Republican-appointed judge(s), rather than those who were instituted by the Democrats. This is why Trump has predicted a reversal of the adverse orders “with the help of the Supreme Court.”
However, things are not as simple as the president makes it sound. Despite the conservative majority, the Supreme Court states an agency report, “issued a series of rulings favouring Trump’s second-term agenda, but has in recent years been hostile to expansive interpretations of old statutes to provide presidents newly-found powers.” The genesis of the tariff tangle lies in one of those old laws, which was enacted in 1977. Trump is the first president to link trade and tariff with the country’s emergency-like situation and national security to invoke unprecedented powers under it. He justified the use of the statute due to “trade imbalances, declining US manufacturing power, and the cross-border flow of drugs.”
Earlier, President George W Bush used the 1977 law in 2001 to disband the financing networks of global terrorist groups after 9/11. President Barack Obama used it against foreign hackers to stop cyberattacks against America. “Trump himself used it to penalise Venezuela’s state-owned oil company, reimpose sanctions on Iran, and target officials at the International Criminal Court,” stated a media report. These were clearly issues of national security. Now, the US president has jumped several feet forward, and used the law to link economic security and energy security with national security.
More important, the latest 7-4 majority decision of the US Court of Appeals for the Federal Circuit in Washington stated, “The (1977) statute bestows significant authority on the President to undertake a number of decisions in response to a declared national emergency, but none of these actions explicitly include the power to impose tariffs, duties, or the like, or the power to tax.” It added, “It seems unlikely that Congress intended… to depart from its past practice and grant the President unlimited authority to impose tariffs.”
Further, the Court stated that it is the US Constitution that gives the Congress, not the President, exclusive powers to regulate commerce with other nations. This is not superseded by the president’s remit to safeguard the economy, or US manufacturing. “The core Congressional power to impose taxes such as tariffs is vested exclusively in the legislative branch by the Constitution. Tariffs are a core Congressional power.” In essence, Trump exceeded his authority and power, and used an old law to acquire new all-encompassing powers. This is something that the Supreme Court too has noted in its recent rulings that went against Trump.
Hence, the president cannot completely rely on the Supreme Court, although that is his best bet. One needs to remember that in the past, neither Republican-appointed judges have always ruled in favour of a Republican president, nor have the Democrat-appointed ones ruled for their presidents. Even in the latest 7-4 Washington court order against the tariffs, two Democratic appointees dissented, and one Republican one assented, and joined the majority group. Judges can, and do, go by legalities, and not just ideologies. There are no Trump judges and Biden ones.
In fact, this was a reason for the fight between the American Chief Justice and Trump in the past. During his first term, the president called a jurist who ruled against his asylum policy, an “Obama judge.” The Chief Justice retorted, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal rights to those appearing before them.” Trump did not give up, and responded on Twitter (now X) that there were Obama judges, who “have a much different point of view than the people who are charged with the safety of this country.”
Trump, as is well-known, politicises everything. He has done it in the past, and he will do it again. As the tariff case moves to the Supreme Court, the president will pressure and berate the judges to rule in his favour. He will hustle, bustle and jostle because tariffs are the foundation to his trade-driven global diplomacy. Not to forget that the new tariffs brought in more than $150 billion of revenues in just the month of July, “more than double the amount collected at the same point the previous year.” If tariffs are overturned by the Supreme Court, the US may be forced to refund these billions to the importers, which will create a risk of “financial ruin.”
Members of the Supreme Court, stated an old article on www.bbc.com, “like to think of themselves as above and apart from the tumult of American politics.” In these trying times, where everything, the entire society, is divided along ideological lines, they may wish to take a more balanced view, rather than be swayed by their own thinking and who appointed them. Some of the judges may wish to arrive at decisions, not because of what Trump says or feels, but because of what the law says in letter and spirit. Obviously, in such traumatic times, it is almost-impossible to predict.