Stealing the Birthright Power

Trump's tariff loss isn't ordinary presidential overreach. The Supreme Court says it's something worse.

Your lack of planning is not my emergency.

That expression came to mind last September when I wrote about the court challenges to Donald Trump’s sweeping tariff program. The administration argued that economic chaos would be unleashed if the court reversed Trump’s import taxes.

Then the president should have been more careful.

That’s one possible conclusion to draw from the Supreme Court’s 6-3 decision. It articulates such an obvious flouting of the constitution and statute that the ruling — joined by justices from every point on the Court’s ideological spectrum — raises the question of whether the president and his team should have known better. Chaos caused by black ice you can’t see on the road is distinct from the chaos caused when you drive a school bus on the wrong side of a zooming interstate.

Beyond the politics of competence, this is a story of brawling executive ambition. On the continuum of presidential action between Coolidge who promised not to “blaze strange paths” and a president whose executive overreach so obviously flouts the constitution he is sworn to protect, where does Donald Trump’s tariff adventure sit? Does it connect to his other actions-- on immigration, the budget-- to render a durable verdict on his character as a constitutional actor?

This falls outside the normal range of aggressive presidential action.

The founders expected a president to be aggressive. Congress and the courts would check him. There’s room for good-faith gambits that are snapped back when they stray. It happened to FDR, Truman, Clinton, Bush, Obama.

How far outside? To measure the Distance count the principles challenged simultaneously. The Framers didn’t just give Congress the tariff power — they built an entire architecture around it. Revenue bills must start in the House, the body closest to the voters, so that the people harmed by a bad tax can fire the members who imposed it. The design ensures that taxation requires deliberation among competing interests, not proclamation by one person. (If you’re a glutton I’ve gone on in the footnote)¹

If you’re going to gamble with the macroeconomy you’d presumably roll the dice on a certain bet. Particularly if restoring economic health was the reason you were elected and the metric for your party’s face in the mid-terms.

There were specific signals at the start that the president’s case was weak:

First, no president in IEEPA’s nearly fifty-year history had ever used the statute to impose a single tariff.

Second, the word “tariff” does not appear in IEEPA. Neither does “duty,” “surcharge,” or any term Congress has ever used when delegating the taxing power. Every statute in which Congress has given a president tariff authority — Section 232 of the Trade Expansion Act, Sections 122, 201, and 301 of the Trade Act of 1974, Section 338 of the Tariff Act of 1930 — uses that vocabulary explicitly. And every one of those statutes caps the rates, limits the duration, and requires procedural steps like agency investigations, public hearings, and findings of fact. The administration claimed Congress conveyed its most consequential power through a word — “regulate” — that has never meant “tax” in any statute the government could identify.

Third, the lower courts were uniformly and emphatically against the administration— a fact that should have prompted a tap on the brakes. Fourth, the government conceded that the president possesses no inherent peacetime authority to impose tariffs. That concession meant the entire legal case rested on a single statutory hook — a reading of “regulate importation” that no court, no president, and no Congress had ever endorsed.

The statutory foundation was weak. The emergency justification was worse. The emergency Trump claimed was nebulous and undermined by non-emergency reasons. Trump and administration officials publicly described the tariffs as instruments for reducing trade deficits (a chronic structural condition, not an emergency), for bringing manufacturing back (an industrial policy goal), and for gaining leverage in bilateral negotiations (Commerce Secretary Howard Lutnick and others described them explicitly as bargaining chips). Trump raised and lowered rates on China in rapid succession — from 34% to 84% to 125% in the span of days — in a pattern that looks like negotiating pressure, not emergency response. The reciprocal tariffs were imposed on every trading partner simultaneously, a strange way to address an emergency originating in any particular country. And the constant modifications — exempting beef and coffee one week, reimposing duties the next — suggested a policy made up on the fly, not an emergency being managed.

It’s a desert topping and floor wax.

The majority opinion affirms all of these impressions:

First, Roberts calls the taxing power Congress’s “birth-right power” and says the Court is “skeptical that in IEEPA — and IEEPA alone — Congress hid a delegation of its birth-right power to tax within the quotidian power to ‘regulate.’” “Birthright” is Roberts saying this isn’t a close question; it’s an attempt to claim by ambiguity what the constitutional structure was designed to withhold.

Second, Roberts explains why this birthright power must reside in Congress. He quotes Madison’s Federalist No. 58, calling the power of the purse the most potent weapon the people’s representatives have to curb the other branches. A president who claims that power doesn’t just violate a statute; he disarms the body the Framers designed to restrain him.

Third, Roberts points out that eight presidents facing every manner of economic threat had the statute available and never read it to authorize a tariff — because the power wasn’t there.

Fourth, Roberts quotes Justice Jackson on the reverse-logic of expanded authority: ‘emergency powers tend to kindle emergencies.’ The entire history of the Constitution suggests the opposite of what Trump claims: when there’s an emergency, Congress is textually specific about what it’s delegating, not less — precisely because presidents who invoke emergencies tend to keep doing so. The first IEEPA emergency, declared during the Iranian hostage crisis, remains in effect four decades later.

Every president who pushes executive power risks being checked. That’s the system working. But the distance between Trump’s legal position and the constitutional reality — as measured by the text, the precedent, the unanimous lower courts, and now a 6-3 Supreme Court — puts this outside the category of good-faith overreach, especially given the stakes. This wasn’t a president testing a boundary. It was a president ignoring one. Which raises the question: is there a principle that should govern how far a president can lean when the stakes of being wrong are this high?

Here is one: The president has a heightened duty of restraint in proportion to the irreversibility and scale of the consequences that would follow from his legal theory being rejected. When the chaos of reversal would be enormous, the obligation to act only on solid legal authority is correspondingly greater. ²

The Court told the president, in effect, that his lack of planning was not its emergency. But it is ours. The refunds, the disrupted trade deals, the market chaos — that belongs to all of us now. A president who builds a nation’s economic policy on legal sand doesn’t bear the consequences alone. The rest of us are the ones who get buried when the foundation gives way.

1. The consent principle: taxation (tariffs are a tax) takes property, and only representatives accountable to the people can legitimately do that. The founders wanted the House to originate such measures because they were the most accountable.

The deliberative principle: tariff policy requires balancing competing regional and economic interests-- manufacturers in the northeast, farmers in the south-- which only a diverse representative body can do.

The structural principle: concentrating revenue power in the executive is the classic pathway to tyranny, which the constitutional design exists to prevent.

The accountability principle: if representatives set tariff rates that hurt their constituents, they face electoral consequences — a feedback mechanism that doesn’t exist when the president acts unilaterally.

2. There is an obvious Jack Ryan exception to this if there’s a bomb on a train about to go off. In other words, a legitimate emergency loosens the duty.