TGIF: Separating Powers

We may be sure that the "separation of powers" doctrine is of no interest to the vulgar egotist currently residing in the White House, which happens to be undergoing the most glorious renovation the world has ever known. Or so we hear. But it stands to reason that the doctrine is vital to personal liberty. No imagination is needed to understand what concentrated political power is likely to mean for the individual and society.

The name most closely associated with the separation of powers is Charles Louis de Secondat, baron de La Brède et de Montesquieu (1689-1755), a judge, philosopher, and historian whose 1748 book, The Spirit of Law, sometimes called The Spirit of the Law[s], heavily influenced the founders of the United States and the framers of the U.S. Constitution. Living in a censorial regime, Montesquieu originally published the work anonymously.

I won't attempt to divine what Montesquieu really thought about the doctrine. A glance indicates that this is no simple matter, as indicated by his several seemingly conflicting statements and competing scholarly interpretations. I will only venture to say that the doctrine is essential to limiting government, if government we must have. (I'm not convinced.) Any principle or taboo that would inhibit the growth of the state and leave room for individual freedom is to be desired. As Thomas Jefferson wrote, "The natural progress of things is for liberty to yeild [sic], and government to gain ground." Thus, he also said, the proper attitude toward government is not confidence but vigilance.

At any rate, it doesn't really matter how committed Montesquieu was to the doctrine. We can make up our own minds. Quoting Montesquieu on behalf of the doctrine should be useful to liberty-minded people. So let's do it. The passage is from Chapter VI: Of the Constitution of England. Montesquieu wrote:

The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another.

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals....

Here, then, is the fundamental constitution of the government we are treating of. The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislative.

To say the least, this is out of step with today's chief executive, who presses for autocratic power on virtually every front—from redesigning the White House to "emergency" tariffs to detention and deportation without due process to extrajudicial murder on the high seas and in Somalia. His attempt to control speech and generally dictate the terms of our economic relations betrays a failure to appreciate an even more important separation: of the government and our private lives. He didn't begin the erosion of those separations; that happened long ago. But he certainly has accelerated it.

If political power must exist, it must be contained, and the way to do that is dispersion among branches and levels. To be sure, the separation of powers and the related checks and balances could impede efforts to roll back power, but preventing new expansions of power seems the higher priority now. No one said that establishing full liberty would be easy.

Mr. Trump no doubt regards the separation-of-powers doctrine as a mere petty annoyance, something his enemies only recently concocted to thwart his grand ambition to be adored a thousand years from now. With barely any exception, the legislative branch of the central government has had no stomach to challenge him. Fortunately, some courts have pushed back. How The Maestro takes a major setback at the Supreme Court, if one should occur, will be instructive.

TGIF: Trump and the Separation of Powers

The U.S. Court of Appeals' rejection last week of the Trump administration's global "emergency" tariff program was a welcome affirmation of the separation-of-powers doctrine. Next stop: the U.S. Supreme Court. I'm keeping my fingers crossed for a 9-0 ruling that Trump grossly exceeded his constitutional powers. One can hope.

Liberty is never secure. However, if we must have a state, the separation of powers may provide some measure of security. The framers, drawing on Montesquieu, understood this. Unfortunately, politicians have weakened the doctrine over the centuries. Most egregiously, presidents have waged war without congressional authorization, as the U.S. Constitution requires.

The first U.S. constitution, the Articles of Confederation, was better than its successor because, among other things, it lacked the powers to tax and regulate trade. (Hard to believe.) The replacement, alas, did assign Congress those powers in Article I, Section 8. Too bad, but at least it did not give them to the executive under Article II. Autocracy is always a danger. (See my America's Counter-Revolution: The Constitution Revisited.)

Trump's minions apparently hadn't informed him that he lacks these powers, but now the Court of Appeals for the Federal Circuit has told him. He is not happy. He condemned the "Highly Partisan Appeals Court" for its "incorrect" decision.

In V.O.S. Selections, Inc. v. Donald Trump, the court, by a 7-4 vote, held that Trump exceeded his power under the International Emergency Economic Powers Act (IEEPA) when, through five executive orders, he imposed tariffs virtually across the board and on virtually all countries after declaring national emergencies ostensibly related to trade reciprocity and drug trafficking.

No, you don't, Mr. President, said the court. In so saying, the judges upheld a ruling by the U.S. Court of International Trade (CIT). The government was "permanently enjoined from imposing the tariffs, but was allowed to continue them until October 14. The administration appealed to the Supreme Court.

All that is at issue in the case is the separation of powers. The administration claimed that the IEEPA authorizes the president to "regulate," with "importation" mentioned as a factor that might trigger the finding of an emergency. Hence, Trump's people said, the president can impose tariffs.

The majority of judges felt it necessary to give Trump a history lesson:

The Constitution grants Congress the power to “lay and collect Taxes, Duties, Imposts and Excises” and to “regulate Commerce with foreign Nations." ... Tariffs are a tax, and the Framers of the Constitution expressly contemplated the exclusive grant of taxing power to the legislative branch; when Patrick Henry expressed concern that the President “may easily become king,” ... James Madison replied that this would not occur because “[t]he purse is in the hands of the representatives of the people.”

Tariffs are a tax. Right.

The judges went on to point out that "at the time of the Founding, and for most of the early history of the United States, tariffs were the primary source of revenue for the federal government.... Setting tariff policy was thus considered a core Congressional function."

Since the late 1800s, the Court stated, Congress has delegated "limited authority to 'activate or suspend' tariff rates through international agreements." But those acts were express delegations of tariff authority and bound by "substantive limitations." As the Court put it:

Taken together, these other statutes indicate that whenever Congress intends to delegate to the President the authority to impose tariffs, it does so explicitly, either by using unequivocal terms like tariff and duty, or via an overall structure which makes clear that Congress is referring to tariffs. This is no surprise, as the core Congressional power to impose taxes such as tariffs is vested exclusively in the legislative branch by the Constitution; when Congress delegates this power in the first instance, it does so clearly and unambiguously.

The IEEPA says nothing about tariffs. It only allows the president to:

investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.

"Notably," wrote the Court, "IEEPA does not use the words 'tariffs' or 'duties,' nor any similar terms like 'customs,' 'taxes,' or 'imposts.' IEEPA also does not have a residual clause granting the President powers beyond those which are explicitly listed."

How have other presidents used the IEPPA?

Since IEEPA was promulgated almost fifty years ago, past presidents have invoked IEEPA frequently. But not once before has a President asserted his authority under EEPA to impose tariffs on imports or adjust the rates thereof. Rather, presidents have typically invoked IEEPA to restrict financial transactions with specific countries or entities that the President has determined pose an acute threat to the country’s interests.

Finally, the Court made it clear that "we are not addressing whether the President’s actions should have been taken as a matter of policy. Nor are we deciding whether IEEPA authorizes any tariffs at all. Rather, the only issue we resolve on appeal is whether the Trafficking Tariffs and Reciprocal Tariffs imposed by the Challenged Executive Orders are authorized by IEEPA. We conclude they are not."

Trump has predicted calamity if his tariffs are erased. He has bragged that the Treasury has collected more than $200 billion in duties and warns that refunding that money would sink the economy. Earlier his lawyers argued against a preliminary injunction on the grounds that the money could easily be paid back. Now he seems to have forgotten that when the government takes, private individuals are taken from. Thus the Treasury's loss would be the people's gain. That would be good for "the economy" (that is us). On the other hand, the government runs a $2 trillion deficit, so the money must be gone, and the government would have to sell more bonds—monetized by the Fed—to pay it back. We lose no matter what.

Trump has faced judicial setbacks on tariffs, deportations, and his National Guard deployment in Los Angeles. What's next? How will he react if the Supreme Court affirms the decisions? Buckle your seatbelts.