Note to Gander: What’s Good for the Goose is…The U.S. Constitution

Oh, how do you hold a moonbeam in your hand?

With apologies to the Sound of Music and Oscar Hammerstein II, there are indeed ways to hold moonbeams in your hand. That is to say, all is not lost when it comes to reclaiming government of, by, and for the people. We can indeed pin down unconstitutional excesses. We can solve the problem of overreaching federal government. All it takes is pledging allegiance to the ethereal light of human liberty interwoven into the very fabric of the U.S. Constitution.

All it takes is standing up to the flibbertijibbets, and how hard can that be?

By now, and this may be an understatement, everyone is somewhat aware that we are having a national discussion about tariffs. Understatement is needed because everyone else, especially in the globalist corporate media and in the Democratic Party, is melting down. Just this morning in the Wall Street Journal, that pompously fatheaded pundit, Karl Rove, flapped on about tariffs causing a free fall in Trump’s approval rating from 50.5 percent to 46.9 percent, never mind that even the lower number is, for Trump, the equivalent of winning the national debate in a landslide.

Approval ratings come and go and come. Turns out, so does President Trump.

Anyway, this column is not about the merits of Trump’s tariffs, except to say they are an arguably reasonable response to the verifiable lack of free trade anywhere in the world. All the corporations who clap on about free trade never see fit to mention all the tariffs and non-tariff barriers placed on our exports, but I would simply reference the 2024 report by the United States Trade Representative on China’s “predatory trade practices”—their words, not mine—to get an inkling of how free trade as envisioned by multinational corporations and as practiced by China and other nations is anything but free.

As President Ronald Reagan intoned when he imposed a 100-percent tariff on semiconductors from Japan in 1987: “As I’ve often said: Our commitment to free trade is also a commitment to fair trade.”

Today’s so-called free traders fail to mention that part of the equation, just as they fail to mention the hollowed-out middle America they left behind when they shipped factories and jobs overseas so they could import cheap goods built on the backs of slave labor back into our country.

Talk about illegal immigration. One might even call it an invasion.

All of which brings us back to the topic in the lead: Are Trump’s sweeping tariff declarations—love them or hate them—even constitutional? Are they legally prescribed medicaments for our economic ills, or are they mere flibbertijibbets and wills-o’-the-wisp that undermine constitutional due process?

The question is not unimportant. In fact it is central. Back in the day, President Barack Obama decreed by fiat that he would not enforce immigration laws, thereby abusing the executive’s discretionary powers. Obama believed the ends justified the means, but conservatives knew better. Deep down, we all knew the answer: a corrupt process will lead to a corrupt end nearly every time—as in the old saying, power corrupts, and absolute power corrupts absolutely.

Today some conservatives—actually, not just some but a lot—are questioning whether the imposition of sweeping tariffs represents just such an executive breach of constitutional separation of powers.

It’s a question well worth exploring because it is clear that the nation’s underlying problem is systemic. The problem isn’t Donald Trump, and it wasn’t Joe Biden, or Obama, or any other individual. It isn’t the Democratic Party or any other party. It isn’t liberalism or socialism or fascism or any of the other leftist mutations per se. Rather, it is the government itself, a self-actualizing entity that needs collectivist ideology to survive, and within which survival itself ultimately depends on totalitarian expansion.

When that is understood, it becomes obvious that the first solution to any problem must be systemic, too, that is, it must maintain fidelity to the fundamental process that guarantees freedom. To be sure, achieving the “end” goals of any hot-button policy position is necessary to the success of any liberty agenda, but it is not always sufficient for success—not if the foundations of freedom are destroyed in the pursuit of freedom.

Measures, then, that circumscribe overreaching government power in any one branch—usually the executive, followed closely by the judiciary—that in general force the government to live under constitutional jurisdiction rather than being able to breathe on its own, are the way to ensure the success of the Republic. The Founders knew this and, in their genius, constructed a system of checks and balances to balance that fundamental tendency of government to overreach. It is that underlying foundation that must always be scrutinized in any debate.

Admittedly, it’s hard to keep the eye trained on it. There are always so many issues of monumental importance hitting us between the eyeballs—the debt, illegal immigration, war and more war, Blake Lively’s drama—it’s often bewildering to try and figure out what stories we need to pay attention to.

Well, you’ve come to the right place for advice. First, take your eyes off Blake and her mess. Second, the real answer is, few of the stories in the national media are truly worth our time, and, of the ones that are, most of the accompanying narrative is worthless. That’s not to say issues like war and tariffs are unimportant. They are crucial, obviously. It’s just to say the essential plot line—the underlying core philosophical debate—is often distorted and obscured by the media and by the government.

To say it another way, we spend so much time discussing the manifestations of the philosophical core—positions on migration, war, regulation, tariffs—we often ignore the core debate itself, which is big government versus individual liberty. And that leads the media, not to mention many conservatives, to ask the wrong questions.

On the street, the long-term consequences of constant government overreach, no matter the particular branch in which it occurs, will be far more catastrophic than the short-term impact of particular policy. We can recover from Bidenomics, or errant tariffs if that is what they turn out to be, however we ultimately choose to do so, but constitutional liberty, once sacrificed, is virtually impossible to retrieve.

The story line, the debate, must always be about more than just the perils of any particular

policy, it must always also be about the perils of government itself.

Two Lawsuits take up the Debate

When it comes to Trump’s authority to issue tariffs, U.S. Sen. Rand Paul (R-Kentucky) has raised the constitutionally systemic question, and he answered it by joining multiple Senate Democrats in supporting a resolution to rescind the national emergency Trump declared as his justification.

His Democratic co-sponsors were Sens. Ron Wyden of Oregon, Chuck Schumer of New York, Tim Kaine of Virginia, Jeanne Shaheen of New Hampshire, Peter Welch of Vermont, and Elizabeth Warren of Massachusetts.

Paul was adamant that Trump was trespassing on congressional terrain.

“Tariffs are taxes, and the power to tax belongs to Congress—not the president,” Paul said. “Our Founders were clear: tax policy should never rest in the hands of one person. Abusing emergency powers to impose blanket tariffs not only drives up costs for American families but also tramples on the Constitution. It’s time Congress reasserts its authority and restores the balance of power.”

Granted, Paul’s position gets him tangled in the net between philosophy and policy, asserting the lack of constitutional authority and then moving right along to opposing tariffs no matter who issues them. It’s not a clean position, and raises suspicion about motive.

But Paul isn’t the only conservative (and by that I mean movement conservatives rather than big business globalists who were seemingly praising socialism just last October but became MAGA overnight) who has questioned Trump’s constitutional authority, and now two groups are challenging him in court, one lawsuit brought by the Liberty Justice Center (LJC) and one by the New Civil Liberties Alliance (NCLA).

The LJC is well known on the right, and, since the days of Covid, the NCLA has aggressively attacked government mandates of all garden varieties, and declared its principal focus to be what it correctly calls the unconstitutional administrative state. So they both have liberty-leaning bona fides.

And both are saying the Trump tariffs are illegal.

In the complaints, both maintain, as Paul does, that the president cannot enact such broad tariffs without congressional approval. Both also focus on Trump’s declaration of a national emergency as pretext for the tariffs—not an unimportant concern given all the mandates the then Democratic-controlled government tried to issue during the pandemic that would have squashed individual liberty altogether—and they both argue that the “major questions” doctrine requires congressional authorization.

“No one person should have the power to impose taxes that have such vast global economic consequences,” Jeffrey Schwab, the LJC senior counsel, said in filing the suit. “The constitution gives the power to set tax rates—including tariffs—to Congress, not the President.”

Co-counsel Ilya Somin, a law professor at the Scalia Law School at George Mason University, was equally adamant about the impact of tariffs.

“If starting the biggest trade war since the Great Depression based on a law that doesn’t even mention tariffs is not an unconstitutional usurpation of legislative power, I don’t know what is,” Somin said.

LJC filed the lawsuit on behalf of five owner-operated businesses who say they have been severely harmed by the tariffs: VOS Selections, a New York-based business specializing in the importation and distribution of small-production wines, spirits, and sakes; FishUSA, Inc., a 25-year-old retail and wholesale e-commerce business specializing in the production and sale of sport-fishing tackle and related gear; Genova Pipe, a privately held company in Salt Lake City, Utah, which manufactures ABS pipe using imported ABS resin from South Korea and Taiwan; MicroKits LLC, a small business based in Charlottesville, Virginia, that makes educational electronic kits and musical instruments; and Terry Precision Cycling, a Vermont-based brand of women’s cycling apparel.

According to the complaint, which was filed in the U.S. Court of International Trade, the tariffs are unprecedented in nature, including a global 10-percent tariff on nearly all imports, with additional higher tariffs targeting dozens of countries.

The lawsuit homes in especially on two executive orders aimed at China and its alleged opioid supply chain, in which the Trump administration contends that the influx of illegal aliens and drugs into the United States is tied to the Chinese government’s failure to “arrest, seize, detain, or otherwise intercept chemical precursor suppliers, money launderers, other TCOs, criminals at large, and drugs.”

China’s failure to act constitutes “an unusual and extraordinary threat,” the executive order determined. In other words, a national emergency.

But the president sees not just an emergency tied to drugs but to the entire matrix of other countries’ tariff and trade barriers. And so, on April 2, which Trump dubbed Liberation Day, the lawsuit alleges, the president issued an executive order that “imposed sweeping new tariffs at rates not seen since the Great Depression—including a global 10 percent tariffs on nearly all countries in the world, regardless of whether they impose tariffs on United States products, the rates at which they do so, or the existence of any trade agreements governing the relationship.”

The tariffs even applied to places with no civilian population or international trade activity, such as the British Indian Ocean Territory, whose only human inhabitants belong to a joint American and British military base on the island of Diego Garcia, and the Heard and McDonald Islands, which are inhabited only by penguins and seals, the lawsuit alleges:

As a basis for all those orders, LJC stated, the administration cited numerous statutes but principally relied on the International Emergency Economic Powers Act of 1977 (IEEPA), the National Emergencies Act, and section 604 of the Trade Act of 1974, as amended.

“But none of these statutes grants the President the authority to impose tariffs,” LJC argues. “The Constitution explicitly reserves to Congress the power to ‘lay and collect taxes, duties, imposts and excises,’ and ‘[t]o regulate commerce with foreign nations.’” Indeed, LJC contends, Title 19 of the United States Code, “Customs and Duties,” is where one would expect to find such presidential authority, but it makes no mention of such authority.

“Congress knows how to grant the president tariff authority when it wants to,” the complaint asserts. “Under 19 U.S. Code § 1862, the president has a clear framework for adjusting duties and import restrictions for the purpose of ‘safeguarding national security.’ Yet the President has attempted to avoid that framework by stretching Congress’s specific grant of emergency authority into general tariff authority.”

The IEEPA further provides that emergency authorities “may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose,” the complaint asserts.

Going further, the JLC asserted, the word “tariff” does not appear in the IEEPA, nor does any synonym or equivalent. The fact that trade deficits exist is no justification for a national emergency, either, the JLC attorneys argued.

Moreover, the attorneys continue, trade deficits go hand in hand with capital surpluses, which increases investment in the United States.

“Presidential authority to unilaterally impose worldwide tariffs, if Congress were to grant it at all, must be granted clearly and unmistakably—not through some implication so vague and indeterminate that it went unnoticed by every other President for nearly five decades,” the complaint contends. “IEEPA does not mention tariffs or duties, or at any point suggest that it is granting the power to lay and collect such. There is no precedent for using IEEPA to impose tariffs. No other President has ever done so or ever claimed the power to do so.”

Bottom line? There is no emergency, and the IEEPA does not authorize tariffs at all, and, even if it did grant the president the broad, standardless discretion he claims, the complaint asserts, it would be an unlawful delegation of legislative authority without any intelligible governing principle.

“If there are any constitutional limits to delegation at all, they apply here, in a case where the executive claims virtually limitless authority to impose massive tax increases and start a worldwide trade war,” the complaint states. “This is the most ‘sweeping delegation of legislative power’ claimed by the executive since the Supreme Court invalidated the National Recovery Act in 1935.”

Indeed, the JLC argues, if longstanding, perfectly normal, bilateral trade deficits qualify as an “emergency” and as an “unusual and extraordinary threat,” the same can be said of virtually any international economic transaction that the president disapproves of for virtually any reason.

“The President would have the power to impose any level of tariffs on goods or services from any country, for any purpose, pretty much anytime he wants,” the group asserts. “The sheer breadth of this claimed power—to impose tariffs at any level on any country at any time, at levels that could very well crash the global economy—counsels against reading IEEPA to confer such an extreme delegation of authority.”

NCLA: What they said

Representing Simplified, a Pensacola-based company owned by Emily Ley, NCLA weighed in with a similar lawsuit, this one aimed at tariffs levied on China.

Specifically, NCLA argues, while the IEEPA statute authorizes certain emergency actions such as imposing sanctions or freezing assets to protect the United States from foreign threats, it does not authorize the president to impose tariffs. NCLA is asking the U.S. District Court for the Northern District of Florida to declare the China import tariff unlawful, vacate the increase reflected in the U.S. tariff schedule, and enjoin the tariff’s implementation and enforcement.

“Under art. 1, § 8 of the Constitution, Congress has sole authority to control tariffs, which it has done by passing detailed tariff statutes,” the complaint states. “The president cannot bypass those statutes by invoking ‘emergency authority in another statute that does not mention tariffs.’”

As did LJC, NCLA maintains that the attempt to use the IEEPA not only violates the law as written but invites application of the Supreme Court’s Major Questions Doctrine, which tells courts not to discern policies of “vast economic and political significance” in a law without explicit congressional authorization.

“The Constitutional power ‘to lay and collect Taxes, Duties, Imposts and Excises’ and ‘to regulate commerce with foreign Nations’ belongs to Congress,” NCLA senior litigation counsel John Vecchione said. “The administration’s actions followed none of these constitutional commands, and the statute it cites does not even use the word ‘tariff’ or ‘tax.’ This unlawful ‘impost’ must fall.”

While making the same arguments as the JLC, the NCLA lawsuit fills in a few gaps for clarification, mainly about whether Congress has delegated its authority to levy tariff in such a way, and, if, so, whether it did so legally.

“The Constitution assigns Congress exclusive power to impose tariffs and regulate foreign commerce,” the complaint states.

IEEPA does authorize asset freezes, trade embargoes, and similar economic sanctions, NCLA observed.

“Presidents have used the IEEPA to target dangerous foreign actors—primarily terrorist organizations and hostile countries such as Iran, Russia, and North Korea,” the complaint states. “Congress passed the IEEPA to counter external emergencies, not to grant presidents a blank check to write domestic economic policy.”

Unlike JLC, which argues there is no emergency, NCLA makes the argument that an emergency does exist with respect to the intrusion of fentanyl from China. But, NCLA argues, the tariffs can’t be linked to that emergency.

“The IEEPA limits presidents to actions that are ‘necessary’ to address the specific emergency at hand,” the complaint states.

In fact, NCLA argues, Trump’s own statements reveal the real reason for the China tariff, which is to reduce American trade deficits while raising federal revenue.

Whither Congress?

These are, of course, exactly the kinds of objections conservatives would raise—and have raised —about executive branch power, particularly concerning the Major Questions Doctrine and the use of emergency powers by the government, which pose a unique threat to democracy.

With respect to the Major Questions Doctrine, the conservative majority of the U.S. Supreme Court has employed it, among other things, to prohibit the FDA from regulating tobacco without an explicit congressional mandate, and it used it again to strike down the CDC’s pandemic moratorium on evictions. The high court also used the doctrine to reject OSHA’s emergency temporary standard imposing Covid-19 vaccination and testing requirements on much of the nation’s workforce.

Conservatives have also eviscerated attempts to govern by national emergency declarations. In 2021, to cite just one example, President Biden unsuccessfully tried to use emergency powers to attempt to forgive hundreds of billions in student loans debt.

Usually conservatives are contesting the overreach of the federal administrative state—aided and abetted by the president when Democrats occupy the Oval office—but the overreach of executive power is not always the work of the bureaucracy. The increasing use of executive orders is another example of executive mayhem, as are emergency declarations devoid of any actual emergency.

The point to consider is that the separation of powers demands that each branch of government stay in its constitutional lane. The Major Questions Doctrine is in play in these lawsuits as it should be, because that is a major tool in forcing compliance from the executive branch.

As for emergencies, the constitution works, even in times of exigent drama. Indeed, fidelity to the constitution is important especially in times of emergency, as Wisconsin state Supreme Court justice Rebecca Bradley quoted U.S. chief justice Charles Evans Hughes in a 1934 decision: “The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the states were determined in the light of emergency, and they are not altered by emergency.”

Not altered by emergency, as in emergencies do not legitimize an illegal transfer of power from the legislative to the executive. If current trade barriers and the flow of fentanyl into the country are suddenly considered emergencies worthy of sweeping presidential power and constitutional abrogation, then exactly what conservatives predicted during the Biden/Covid era has indeed come to pass, namely, that our nation would slide down the slippery slope of emergency declaration after emergency declaration for power’s sake. Climate change, gun violence, low vaccination rates—emergencies all in the progressive mindset. Now tariffs join them as the emergency flavor of the month, only it is now conservatives sliding down the slippery slope.

Tariffs may well be the tonic the American economy needs, they may well be what the middle class must have to survive, they may even be necessary to restore our independence in a nationalist-centric global order. But what is needed more than that tonic is the proven medicine of the constitutional separation of powers and an adherence to the intent of the words on the page, if our representative republic is to mean anything at all.

The U.S. Constitution can either be a flibbertijibbet, a will-o’-the-wisp of elusive deception, or a moonbeam in our hands, but it can’t be both, to be decided by the day depending on the convenience, or emergency, needed.

I vote for moonbeam, that steady and universal light of liberty that commands us forward on bedrock principle rather than stranding us on islands of shifting devotions, overcome by shrill cries that the sky is falling.