MBD raises a question I’d never thought about before: Is there better reason for the courts to block a president’s unilateral tariffs than for them to block a president’s unilateral military actions? Even though I think that the war powers of the executive branch have been stretched in modern times beyond their constitutional limits, I have assumed that the courts have no business getting involved in that question.

I still think there are some good reasons to distinguish the issues. First, there’s the question of standing. There are obvious parties who can demonstrate a concrete, particularized injury from tariffs of the kind that courts generally recognize; not so in the case of the deployment of troops. Second, there’s a long practice of the president’s deployment of troops without congressional authorization; so far, there is not one of the president’s launching a trade war by himself against the rest of the world.

Third, the constitutional text cuts more cleanly against executive power in the case of trade war than in the case of actual war. The Constitution makes the president the commander in chief while giving Congress the power to declare war; the exact division of labor implied is open to debate. By contrast, the Constitution fails to make the president the trade regulator in chief, and specifically vests the power to lay taxes, duties, imposts, and excises in Congress. (Someone should tell the president.)

None of that settles the legal issues before the courts right now: I think the initial ruling against the tariffs may have been overbroad. But it does, I think, suggest that a judicial response to presidential assertiveness is more justifiable when it comes to trade than when it comes to warfare.