Who decides whether Trump exceeded his authority?

CNN reported earlier that markets were up on the news of the court decision on the tariff hikes. That’s rational. While investors do not know how the legal drama will play out (a lot of calls from will be going out from investment analysts to their firms’ lawyers), the chance that some of the the tariff hikes will either disappear or be cut in size and/or scope has increased. That’s a net positive that was not previously priced in, and the buyers were a reflection of that.

Others were simply rolling the dice, while others still would have been buying on the expectation that there will be more buying to come (including by other buyers who are expecting other buyers to buy). Keynes, no mean investor, explained how this works in his General Theory:

[P]rofessional investment may be likened to those newspaper competitions in which the competitors have to pick out the six prettiest faces from a hundred photographs, the prize being awarded to the competitor whose choice most nearly corresponds to the average preferences of the competitors as a whole; so that each competitor has to pick, not those faces which he himself finds prettiest, but those which he thinks likeliest to catch the fancy of the other competitors, all of whom are looking at the problem from the same point of view. It is not a case of choosing those which, to the best of one’s judgment, are really the prettiest, nor even those which average opinion genuinely thinks the prettiest. We have reached the third degree where we devote our intelligences to anticipating what average opinion expects the average opinion to be. And there are some, I believe, who practise the fourth, fifth and higher degrees.

But back to the case. The administration is appealing, as it had to, but there must be some in the White House who think that, politically, this is a case that Trump would win by losing. Even allowing for its use as part of a negotiating strategy, “liberation day” is, politically as well as economically, a serious misstep, something that should not have come as a surprise. That it seems to have done is yet another reminder of how self-defeating ideological blinders can be. If the president loses this case, the other tariffs he has hiked still stand, and he can always come back with narrower, more carefully targeted tariffs that can more plausibly be linked to an “emergency.” Throw in an expiry date (which can always be renewed) and a court might well be less inclined to reverse what he was doing.

The political benefits of such a defeat would also include framing it as yet more proof that Trump is an outsider battling the Washington establishment on behalf of the people (no matter that high, never quite settled tariffs are a swamp-dweller’s dream).

Right on cue, Stephen Miller, the White House deputy chief of staff for policy, tweeted, “The judicial coup is out of control.” Judicial overreach is not exactly unknown, but that’s not what this judgment is. Miller must know that, but claiming that this court is participating in a “coup” fires up the faithful and will please his boss, too. So, a “coup” it must be.

Miller was not alone. CNN reported comments by White House spokesman Kush Desai. They included that observation that “it is not for unelected judges to decide how to properly address a national emergency.” The “unelected” reinforces the broader “wicked Washington” narrative, belittles that pesky separation of powers thing, and distracts people’s attention from the root cause of this dispute. And that is the argument that Trump had exceeded the powers previously delegated to a serving president by an (elected) Congress. Put it another way, he was elected, sure, but not to do this.

The question then becomes who decides whether Trump exceeded his authority. Generally that role is reserved to the courts. There are exceptions to this principle, but it seems hard to believe that they would apply in a case such as this. If the Supreme Court (as that is where this case is, hopefully sooner rather than later, headed) decides otherwise, then Congress should step up, restore some of its authority in this area, and narrow the extent of the IEEPA delegation so that can there can never be another such ‘liberation day.’