In times of national emergency, should the U.S. Supreme Court dictate America's grand strategy and global economic policies?
This question confronts the justices this week in Learning Resources v. Trump, a case that puts the president's tariff powers to the test.
If President Donald Trump loses, the Treasury faces having to refund more than $100 billion in tariff revenue, and the president's trade strategy will be thrown into chaos.
Businesses that have already changed their operations because of the tariffs, drawing jobs and supply chains back to America, will be subject to grave new uncertainties. . . .
Will Trump find other legal grounds for his tariffs or will his project collapse, throwing the country back to an era of unfettered globalization?
The law Trump relies on most for his tariffs is the International Emergency Economic Powers Act, or IEEP, which gives him broad powers to "regulate" international trade when the president declares an emergency.
Trump has declared both the trade deficit and the fentanyl crisis to be emergencies under IEEP.
But critics argue the legislation doesn't authorize tariffs — tariffs are taxes, they say, and the Constitution only gives Congress power to tax.
Yet obviously it's the president who collects taxes, and by giving the president emergency economic powers to deal with international problems, Congress may logically have given the president power to collect tariffs at whatever rate he deems necessary.
The law allows the president to go so far as to suspend trade with a foreign country and impose crippling economic sanctions at his discretion.
If a president can do that much under IEEP, he must be able to take the less drastic step of regulating trade through penalties — tariffs — on foreign producers.
If the Supreme Court accepts that line of argument, however, it still leaves the question of whether the country is indeed in an emergency.
We've had trade deficits since about 1970, consistently; what makes today's any different?
What's changed is they've reached critical mass, not only in Trump's determination but in the opinion of the American public, which elected the "tariff man" last year knowing exactly what he planned to do about industrial decline.
The IEEP lets the president — not the courts — make the call about emergencies emanating from abroad.
To rule IEEP itself is unconstitutional would be a breathtaking intervention by the Supreme Court, seizing power not only from the president but from Congress itself.
Determining the scope of emergency action is something the American people must have a say about, which makes this a matter for the elected branches of government.
If voters don't like how presidents use emergency powers under IEEP, they can elect a Congress that will change the law.
Two branches have to cooperate to give the president this power, and the people have to stand behind them.
To countermand the president, the legislature and voters themselves would damage the court's own legitimacy — and breed confusion about just where the buck stops when the country is in dire trouble.
Emergency powers that are too broad — as long as voters can correct them — are better than emergency powers too narrow to serve the country in a time of need.
The court understands this:
Its present conservative majority takes a dim view of vaguely worded legislation that presidents can twist to their own economic agenda.
Former President Joe Biden's attempt to forgive federal student loans unilaterally, for example, didn't survive the court's scrutiny.
But the "major questions doctrine," as conservative justices understand it, is about preventing presidents from using loosely framed legislation to expand their power in domestic affairs — foreign policy is a different matter, including the economic components of grand strategy.
Trump's tariffs are the keystone of his America First economic agenda, but they're taxes only on foreign goods, and Trump is attempting to restructure the world economic order to benefit Americans.
It's the grandest of grand strategies, with profound implications for national security and international diplomacy — the tariffs are, after all, the currency of Trump's negotiations with foreign leaders.
Congress isn't in a position to conduct diplomacy or minutely manage policy concerning America's industrial strength relative to our rivals.
If the president doesn't have freedom to respond to the big picture — and to draw it — then no part of government, not Congress and certainly not the judiciary, will have the capacity to act on the scale needed to give our nation a unified direction in global contests.
This is one reason the Constitution's Framers created the presidency in the first place.
They knew there would be situations that called for America to act toward the world with a singular vision.
The Supreme Court knows that, too, which is why it should uphold Trump's tariffs and leave it to the people and their representatives in Congress to decide if the president ever goes too far.
Daniel McCarthy, a recognized expert on conservative thought, is the editor-in-chief of Modern Age: A Conservative Review. He's also a regular contributor to The Spectator's World edition. He has a long association with The American Conservative, a magazine co-founded by Pat Buchanan. Mr. McCarthy's writings appeared in a variety of publications. He has appeared on PBS NewsHour, NPR, the BBC, the Australian Broadcasting Corporation, CNN International and other radio and television outlets. Read more of Daniel McCarthy's reports — Here.