The piece tries to project strategic calm, but it glosses over core legal, economic, and logical problems. Here’s a structured rebuttal.
⸻
1. The “Bizarre Situation” Framing Is Misleading
The author calls it “bizarre” that a president could regulate or embargo trade but not impose tariffs under IEEPA. That’s not bizarre—it’s statutory interpretation.
• IEEPA (International Emergency Economic Powers Act) was designed for emergency economic sanctions, not general revenue-raising or trade restructuring.
• Congress wrote other statutes specifically to govern tariffs.
If Congress creates distinct tools for distinct purposes, it’s not “ironic” for the Court to enforce those boundaries. It’s separation of powers.
The comparison to John Roberts and the Affordable Care Act case is also weak. In the ACA case, the Court interpreted ambiguous statutory language to preserve constitutionality. Here, the Court interpreted a statute’s limits. Those are different judicial functions.
Calling this parallel “creative” judicial hypocrisy is rhetorical flourish, not legal reasoning.
⸻
2. The “No Substantive Effect” Claim Contradicts the Entire Argument
The essay argues:
• The ruling has little practical effect.
• Trump has ample alternative authorities.
• Negotiations will proceed unchanged.
If that’s true, why was IEEPA used in the first place?
The real reason:
IEEPA allowed speed, flexibility, and minimal process. That is precisely why the Court’s ruling matters.
Authorities like:
• Section 122 (Trade Act of 1974)
• Section 301 (Trade Act of 1974)
• Section 232 (Trade Expansion Act of 1962)
all require procedural steps, investigations, findings, and timelines. That is not a trivial distinction. It reduces executive discretion and slows coercive leverage.
The author quietly admits this when noting those authorities require “more thorough process.” That’s the point.
⸻
3. The “Marbury” Analogy Is Overblown
Invoking John Marshall and Marbury v. Madison is grandiose.
Marbury established judicial review. This case enforces statutory limits on delegated emergency powers.
There is no sweeping constitutional restructuring here—just reaffirmation that:
• Congress writes tariff law.
• Emergency statutes are not blank checks.
Equating this ruling with a foundational constitutional moment exaggerates its significance.
⸻
4. Section 122 Is Not a Clean Substitute
Section 122 allows temporary tariffs up to 15% for balance-of-payments purposes, but:
• It expires after 150 days without congressional extension.
• It requires specific economic justification.
• It is not a permanent restructuring tool.
The author frames this as “little will change in the short run,” but that short run is legally capped and politically uncertain. That is a meaningful constraint.
If Congress must act, that’s a shift of power away from unilateral executive action.
⸻
5. The Leverage Argument Is Economically Questionable
The piece assumes:
• Tariffs are effective negotiating leverage.
• Other countries will not “back out.”
• Supply chains will shift reliably due to tariff differentials.
But economic evidence from prior tariff cycles suggests:
• Tariff costs are largely borne domestically through higher prices.
• Supply chains shift slowly and often to other low-cost countries, not back to the U.S.
• Retaliatory tariffs can blunt leverage.
Leverage works when the threat is credible and sustainable. If authority is legally fragile or procedurally constrained, credibility diminishes.
⸻
6. The China Section Contains a Tension
The essay claims:
• Tariffs on China can go “as high as he might want.”
• China is an “obvious adversary.”
• Tariffs are central to supply chain realignment.
But also admits:
• The administration may reduce pressure ahead of a summit.
That exposes the core contradiction:
If tariffs are a long-term structural industrial policy tool, they cannot simultaneously be flexible summit bargaining chips.
You cannot signal both permanent decoupling and short-term détente without undermining credibility.
⸻
7. Revoking PNTR Is Not a Technical Adjustment
Revoking China’s PNTR would be a major structural shift in U.S.–China trade relations, not a tidy bipartisan housekeeping matter.
It would:
• Trigger significant tariff increases.
• Invite retaliation.
• Potentially violate WTO commitments.
• Disrupt multinational supply chains abruptly.
The essay frames this as clean and consensus-driven, but the economic consequences would be profound and politically costly.
⸻
8. The Transshipment Problem Is Not Easily Solved by Tariffs
The transshipment argument assumes:
• Third countries can easily be coerced into enforcing U.S. policy.
• Tariff threats are an effective enforcement mechanism.
In practice:
• Rules-of-origin enforcement is complex.
• Multilateral coordination is required.
• Excessive pressure risks alienating allies.
Tariffs alone do not solve transshipment; customs enforcement and trade agreements do.
⸻
9. The “More Powerful and More Crystal Clear” Claim Is Logically Backward
If:
• IEEPA authority is struck down,
• Temporary authority expires in 150 days,
• Other authorities require investigations and procedural steps,
• Congress must potentially legislate,
then presidential tariff power is not “more powerful.”
It is:
• More constrained.
• More procedural.
• More dependent on legislative cooperation.
That is not executive strengthening—it is institutional rebalancing.
⸻
10. The Central Omission: Congress’s Role
The essay treats congressional involvement as a technical detail rather than a constitutional design feature.
Trade authority was delegated to the executive in specific statutes with specific boundaries. When courts enforce those boundaries, they are not sabotaging trade strategy; they are preserving the separation of powers.
If the policy is sound, Congress can codify it.
If it cannot pass Congress, that suggests the issue is political consensus—not judicial obstruction.
⸻
Bottom Line
The ruling:
• Reinforces statutory limits.
• Forces reliance on clearer legal authorities.
• Reasserts congressional involvement.
• Reduces unilateral executive flexibility.
That may produce a more disciplined trade policy—but precisely because it constrains executive improvisation.
The essay attempts to portray constraint as empowerment. That rhetorical inversion does not survive scrutiny.
OK, I am not worried about the tariffs but I am worried about the Supreme Court. You have the 3 Democrats who will always rule against Trump. You have two solid justices and then you have 4 squishes who are more or less controlled by Roberts. Barrett will always go with him and he can usually get one of the other two. So it really depends on what Roberts decides to do. If the man has any actual principles, I am unable to detect them. He seems to want to preserve the institutional position of the Court so he tacks back and forth randomly. In trying to preserve the court he is actually undermining it.
This kind of framing says more about partisan frustration than it does about how the Court actually works. Reducing nine independent justices to “three Democrats,” “two solid,” and “four squishes” is not analysis — it’s tribal scorekeeping. It assumes that the only principled position is consistent alignment with one political figure, and that deviation equals weakness or manipulation. That’s not how constitutional adjudication functions.
First, the idea that three justices “will always rule against Trump” ignores the reality that Supreme Court voting coalitions are case-specific and often cross ideological lines. Justices are not party operatives; they rule on legal questions, not on loyalty tests. There have been numerous cases across administrations where so-called liberal and conservative justices have split in unexpected ways. Treating disagreement as proof of bad faith short-circuits serious legal discussion.
Second, describing four justices as “controlled by Roberts” misunderstands both institutional dynamics and individual judicial independence. The Chief Justice does not control votes. Each justice has life tenure and equal authority in conference. Roberts can assign majority opinions when he is in the majority, but he cannot compel anyone to join him. The claim that Barrett “will always go with him” is simply not borne out by the record; she has joined majorities and dissents across the ideological spectrum depending on the legal issue at hand.
Third, the criticism that Roberts “tacks back and forth randomly” mistakes incrementalism for randomness. His jurisprudence has been relatively consistent in certain respects: skepticism of sweeping institutional change, preference for narrow rulings, and concern for the Court’s legitimacy as a co-equal branch. Preserving institutional legitimacy is not a betrayal of principle — it is itself a principle. Courts that appear overtly partisan lose the public confidence on which their authority ultimately depends.
Finally, the claim that trying to preserve the Court is “undermining it” reverses cause and effect. The Court is undermined when observers treat it as just another political battlefield and demand uniform ideological outcomes. If every decision is judged solely by whether it advances or blocks one political actor, then the damage to institutional credibility comes from that framing — not from a Chief Justice attempting to steer a narrow, legally grounded course.
You can disagree with specific rulings. You can argue Roberts is too cautious or too strategic. But reducing judicial behavior to loyalty or betrayal oversimplifies a complex constitutional role and turns legal disagreement into partisan grievance.
That’s a straw man. No one serious argues that any bloc of justices — liberal or conservative — “always” rules perfectly according to pure constitutional principle. The claim under debate is narrower: that reducing votes to partisan loyalty oversimplifies how the Court actually operates.
If the Court were purely partisan, voting patterns would be rigidly predictable by party of appointing president. They aren’t. There are frequent cross-ideological coalitions, unanimous decisions, and fractured alignments that don’t track cleanly with “liberal vs. conservative.” That reality alone undermines the “always rule as Democrats” caricature.
It’s also worth noting that accusing one side of blind partisanship while implying the other side is the principled baseline simply flips the bias. The more defensible position is that all justices bring interpretive philosophies, priors, and constraints to the bench — and that sometimes those philosophies align with partisan outcomes and sometimes they don’t.
Mocking the argument avoids the substance: the question isn’t whether liberal justices are infallible. It’s whether “they always vote against X” is an accurate or useful way to describe constitutional adjudication. It isn’t
My problem with Roberts dates to pre-Trump days. In fact, I have a problem with the whole judicial system and would like to find a way to implement Hamilton's original prediction. They have way too much power and misuse it routinely. So let me raise Dred Scott, Korematsu, Plessy, Filburn, the Obama care switch and Kelo and see you defend those. And then there is the switch in time that saved nine. That judge was named Roberts too.
Your comment bundles together very different cases across 170 years and treats them as proof that the judiciary “routinely” misuses power. That conclusion doesn’t follow from the examples.
First, invoking Dred Scott v. Sandford, Korematsu v. United States, and Plessy v. Ferguson proves the opposite of your point. These decisions are now universally regarded as grave errors — and they were later repudiated by constitutional amendments or overturned precedent (e.g., Brown v. Board of Education). The system ultimately corrected itself through the mechanisms built into Article V and stare decisis. Pointing to notorious historical failures doesn’t show “routine misuse”; it shows that constitutional interpretation evolves and that the Court can reverse itself.
Second, Wickard v. Filburn and Kelo v. City of New London are controversial, but they are grounded in specific constitutional doctrines (Commerce Clause and Takings Clause jurisprudence). One can argue those doctrines are too expansive, but that is a substantive disagreement about interpretation — not proof that judges exceeded judicial power in the Hamiltonian sense. In fact, Hamilton in The Federalist No. 78 described the judiciary as having “neither force nor will, but merely judgment.” These cases involved interpretation of text and precedent — precisely the role he envisioned — even if you dislike the outcomes.
Third, the “Obamacare switch” refers to National Federation of Independent Business v. Sebelius, where Chief Justice Roberts upheld the individual mandate under Congress’s taxing power while limiting it under the Commerce Clause. That was not a blank check for federal authority; it actually narrowed Commerce Clause doctrine while sustaining the statute on an alternative constitutional ground. Calling it a “switch” implies political motivation, but the written opinion laid out a doctrinal path consistent with long-standing deference to Congress’s taxing authority.
Finally, the “switch in time that saved nine” refers to the 1937 shift during the New Deal era, often associated with Owen Roberts. Modern scholarship disputes the simplistic narrative that it was a political capitulation to court-packing threats; the doctrinal evolution had begun earlier, and voting patterns were more complex than the slogan suggests.
If the argument is that the Court sometimes gets things wrong, that’s historically undeniable. But isolated landmark errors — especially ones later overturned — do not establish systemic lawlessness or “too much power.” The judiciary’s authority remains bounded by text, precedent, amendment, jurisdictional limits, and ultimately by constitutional change through the political branches and the states. Disagreement with outcomes is not the same thing as proof of institutional illegitimacy.
That claim collapses important constitutional distinctions into a slogan.
First, judges are not “just politicians.” Politicians are electorally accountable actors who campaign, fundraise, and respond directly to voter coalitions. Federal judges, by contrast, are insulated from elections precisely so they can decide cases without immediate political pressure. You may disagree with their reasoning, but structural independence is the opposite of electoral politics.
Second, they are not “completely immune from accountability.” Federal judges can be impeached and removed by Congress. Their decisions can be overturned by higher courts, reversed by later precedent, limited by statute (within constitutional bounds), or superseded by constitutional amendment. State judges in many jurisdictions are subject to elections or retention votes. That is not immunity.
Third, equating unpopular outcomes with political motivation assumes what it needs to prove. A ruling that aligns with one party’s interests does not establish partisan intent; constitutional interpretation often overlaps with policy preferences because the Constitution allocates power in ways that have policy consequences.
Finally, if judges were merely politicians in robes, we would expect rigid party-line voting in nearly every significant case. In reality, there are unanimous opinions, cross-ideological majorities, and fractured alignments that defy simple partisan mapping.
Criticizing specific decisions is fair. But declaring the entire judiciary indistinguishable from partisan officeholders oversimplifies both the design of the system and the real mechanisms of accountability built into it.
The author frames his approach as a disciplined evolution of trade nationalism, moving from executive improvisation to a more lawful and sustainable foundation. But it’s difficult to see how this differs from the logic that has trapped Argentina in Peronist cycles for decades: tariffs as instruments of sovereignty that erode competitiveness, fuel inflation, and entrench stagnation, while failing to build genuinely competitive productive capacity through the free exchange of technology, labor, and capital. What prevents American “industrial policy” from becoming the same story at a higher income level—a politics of control dressed up as national renewal? Isn’t this, ultimately, the central planner’s dilemma that undid the Soviet Union and every other economy that mistook control over production for prosperity?
Really, Oren? Are you seriously saying the president should have the authority to unilaterally impose a tax on Americans? That was the sole motivation for the Boston Tea Party. Only Congress can levy taxes. Tariffs are taxes, not tools to regulate. Go back and re-read Article I, seems you need a refresher.
Great article Oren, thanks for the heads up here on the tariffs. We are in a war on many fronts. Unfortunately, we must take sides. And it all is going to get uglier as we move into the 2030's. Hope we can keep the country together. Might need another Lincoln down the road?!
Excellent synopsis. An-oft complex and murky subject made the more easily understandable and digestible by virtue of clarity and precision aforethought. Well played, sir!
"Those require a more thorough process, but imposition is an entirely credible threat, and countries that have already entered negotiations or reached deals will likely recognize that they would be unwise to back out now."
Bwahahah. . . .more thorough process. Yeah right, that's exactly what the Trump admin is known for - discipline and hard work.
"If he [Trump] uses the loss of IEEPA tariffs as an excuse to let the rate on China drift lower, that would be a concerning sign for the summit and it would undermine the ongoing effort to push supply chains out of China, which depends on keeping tariffs there meaningfully higher than they are on other countries."
Stop smoking the hopium Oren. Trump already caved on NVIDIA chip sales to China. Why wouldn't he just cave on this too? He's not going to spend any time thinking about this.
"He had made a strategic choice to move quickly with the authority that was most flexible, even if not the one on firmest legal ground. The year since has given his team time to make enormous progress on negotiations and to initiate processes that will provide a more stable foundation for continued efforts."
No, he made the choice to move quickly because he's lazy and has no desire to try to work the channels that are actually constitutional. On anything.
"A better framework for the global trading system, and better incentives for domestic investment, were always going to require firmer foundations than IEEPA. It is good to move toward them."
Yeah, you're right. Only it won't be Trump that moves towards them.
So according to Oren (and Trump) a local Canadian politician putting up ads about what Reagan said or didn’t say created a national emergency otherwise even by Trump logic the tariff he hit Canada as a retaliation would have been unconstitutional, illegal. It’s fine that you support tariffs as a means of economic policy and you are fully capable of making valid arguments supporting a policy. But still referring to what was clearly from day one against the law as ‘liberation day’ is simply shameful. You can do better.
The piece tries to project strategic calm, but it glosses over core legal, economic, and logical problems. Here’s a structured rebuttal.
⸻
1. The “Bizarre Situation” Framing Is Misleading
The author calls it “bizarre” that a president could regulate or embargo trade but not impose tariffs under IEEPA. That’s not bizarre—it’s statutory interpretation.
• IEEPA (International Emergency Economic Powers Act) was designed for emergency economic sanctions, not general revenue-raising or trade restructuring.
• Congress wrote other statutes specifically to govern tariffs.
If Congress creates distinct tools for distinct purposes, it’s not “ironic” for the Court to enforce those boundaries. It’s separation of powers.
The comparison to John Roberts and the Affordable Care Act case is also weak. In the ACA case, the Court interpreted ambiguous statutory language to preserve constitutionality. Here, the Court interpreted a statute’s limits. Those are different judicial functions.
Calling this parallel “creative” judicial hypocrisy is rhetorical flourish, not legal reasoning.
⸻
2. The “No Substantive Effect” Claim Contradicts the Entire Argument
The essay argues:
• The ruling has little practical effect.
• Trump has ample alternative authorities.
• Negotiations will proceed unchanged.
If that’s true, why was IEEPA used in the first place?
The real reason:
IEEPA allowed speed, flexibility, and minimal process. That is precisely why the Court’s ruling matters.
Authorities like:
• Section 122 (Trade Act of 1974)
• Section 301 (Trade Act of 1974)
• Section 232 (Trade Expansion Act of 1962)
all require procedural steps, investigations, findings, and timelines. That is not a trivial distinction. It reduces executive discretion and slows coercive leverage.
The author quietly admits this when noting those authorities require “more thorough process.” That’s the point.
⸻
3. The “Marbury” Analogy Is Overblown
Invoking John Marshall and Marbury v. Madison is grandiose.
Marbury established judicial review. This case enforces statutory limits on delegated emergency powers.
There is no sweeping constitutional restructuring here—just reaffirmation that:
• Congress writes tariff law.
• Emergency statutes are not blank checks.
Equating this ruling with a foundational constitutional moment exaggerates its significance.
⸻
4. Section 122 Is Not a Clean Substitute
Section 122 allows temporary tariffs up to 15% for balance-of-payments purposes, but:
• It expires after 150 days without congressional extension.
• It requires specific economic justification.
• It is not a permanent restructuring tool.
The author frames this as “little will change in the short run,” but that short run is legally capped and politically uncertain. That is a meaningful constraint.
If Congress must act, that’s a shift of power away from unilateral executive action.
⸻
5. The Leverage Argument Is Economically Questionable
The piece assumes:
• Tariffs are effective negotiating leverage.
• Other countries will not “back out.”
• Supply chains will shift reliably due to tariff differentials.
But economic evidence from prior tariff cycles suggests:
• Tariff costs are largely borne domestically through higher prices.
• Supply chains shift slowly and often to other low-cost countries, not back to the U.S.
• Retaliatory tariffs can blunt leverage.
Leverage works when the threat is credible and sustainable. If authority is legally fragile or procedurally constrained, credibility diminishes.
⸻
6. The China Section Contains a Tension
The essay claims:
• Tariffs on China can go “as high as he might want.”
• China is an “obvious adversary.”
• Tariffs are central to supply chain realignment.
But also admits:
• The administration may reduce pressure ahead of a summit.
That exposes the core contradiction:
If tariffs are a long-term structural industrial policy tool, they cannot simultaneously be flexible summit bargaining chips.
You cannot signal both permanent decoupling and short-term détente without undermining credibility.
⸻
7. Revoking PNTR Is Not a Technical Adjustment
Revoking China’s PNTR would be a major structural shift in U.S.–China trade relations, not a tidy bipartisan housekeeping matter.
It would:
• Trigger significant tariff increases.
• Invite retaliation.
• Potentially violate WTO commitments.
• Disrupt multinational supply chains abruptly.
The essay frames this as clean and consensus-driven, but the economic consequences would be profound and politically costly.
⸻
8. The Transshipment Problem Is Not Easily Solved by Tariffs
The transshipment argument assumes:
• Third countries can easily be coerced into enforcing U.S. policy.
• Tariff threats are an effective enforcement mechanism.
In practice:
• Rules-of-origin enforcement is complex.
• Multilateral coordination is required.
• Excessive pressure risks alienating allies.
Tariffs alone do not solve transshipment; customs enforcement and trade agreements do.
⸻
9. The “More Powerful and More Crystal Clear” Claim Is Logically Backward
If:
• IEEPA authority is struck down,
• Temporary authority expires in 150 days,
• Other authorities require investigations and procedural steps,
• Congress must potentially legislate,
then presidential tariff power is not “more powerful.”
It is:
• More constrained.
• More procedural.
• More dependent on legislative cooperation.
That is not executive strengthening—it is institutional rebalancing.
⸻
10. The Central Omission: Congress’s Role
The essay treats congressional involvement as a technical detail rather than a constitutional design feature.
Trade authority was delegated to the executive in specific statutes with specific boundaries. When courts enforce those boundaries, they are not sabotaging trade strategy; they are preserving the separation of powers.
If the policy is sound, Congress can codify it.
If it cannot pass Congress, that suggests the issue is political consensus—not judicial obstruction.
⸻
Bottom Line
The ruling:
• Reinforces statutory limits.
• Forces reliance on clearer legal authorities.
• Reasserts congressional involvement.
• Reduces unilateral executive flexibility.
That may produce a more disciplined trade policy—but precisely because it constrains executive improvisation.
The essay attempts to portray constraint as empowerment. That rhetorical inversion does not survive scrutiny.
AI generated?
Robot yes
Do you wish to argue any of the points made? I’ll cheerfully answer.
Credit where it's due: Nice rebuttal, both in logic and in fact. I take you for a formidable debater!
OK, I am not worried about the tariffs but I am worried about the Supreme Court. You have the 3 Democrats who will always rule against Trump. You have two solid justices and then you have 4 squishes who are more or less controlled by Roberts. Barrett will always go with him and he can usually get one of the other two. So it really depends on what Roberts decides to do. If the man has any actual principles, I am unable to detect them. He seems to want to preserve the institutional position of the Court so he tacks back and forth randomly. In trying to preserve the court he is actually undermining it.
This kind of framing says more about partisan frustration than it does about how the Court actually works. Reducing nine independent justices to “three Democrats,” “two solid,” and “four squishes” is not analysis — it’s tribal scorekeeping. It assumes that the only principled position is consistent alignment with one political figure, and that deviation equals weakness or manipulation. That’s not how constitutional adjudication functions.
First, the idea that three justices “will always rule against Trump” ignores the reality that Supreme Court voting coalitions are case-specific and often cross ideological lines. Justices are not party operatives; they rule on legal questions, not on loyalty tests. There have been numerous cases across administrations where so-called liberal and conservative justices have split in unexpected ways. Treating disagreement as proof of bad faith short-circuits serious legal discussion.
Second, describing four justices as “controlled by Roberts” misunderstands both institutional dynamics and individual judicial independence. The Chief Justice does not control votes. Each justice has life tenure and equal authority in conference. Roberts can assign majority opinions when he is in the majority, but he cannot compel anyone to join him. The claim that Barrett “will always go with him” is simply not borne out by the record; she has joined majorities and dissents across the ideological spectrum depending on the legal issue at hand.
Third, the criticism that Roberts “tacks back and forth randomly” mistakes incrementalism for randomness. His jurisprudence has been relatively consistent in certain respects: skepticism of sweeping institutional change, preference for narrow rulings, and concern for the Court’s legitimacy as a co-equal branch. Preserving institutional legitimacy is not a betrayal of principle — it is itself a principle. Courts that appear overtly partisan lose the public confidence on which their authority ultimately depends.
Finally, the claim that trying to preserve the Court is “undermining it” reverses cause and effect. The Court is undermined when observers treat it as just another political battlefield and demand uniform ideological outcomes. If every decision is judged solely by whether it advances or blocks one political actor, then the damage to institutional credibility comes from that framing — not from a Chief Justice attempting to steer a narrow, legally grounded course.
You can disagree with specific rulings. You can argue Roberts is too cautious or too strategic. But reducing judicial behavior to loyalty or betrayal oversimplifies a complex constitutional role and turns legal disagreement into partisan grievance.
Sure. The liberal democrats on the court always rule according to principles and the constitution. Got it
That’s a straw man. No one serious argues that any bloc of justices — liberal or conservative — “always” rules perfectly according to pure constitutional principle. The claim under debate is narrower: that reducing votes to partisan loyalty oversimplifies how the Court actually operates.
If the Court were purely partisan, voting patterns would be rigidly predictable by party of appointing president. They aren’t. There are frequent cross-ideological coalitions, unanimous decisions, and fractured alignments that don’t track cleanly with “liberal vs. conservative.” That reality alone undermines the “always rule as Democrats” caricature.
It’s also worth noting that accusing one side of blind partisanship while implying the other side is the principled baseline simply flips the bias. The more defensible position is that all justices bring interpretive philosophies, priors, and constraints to the bench — and that sometimes those philosophies align with partisan outcomes and sometimes they don’t.
Mocking the argument avoids the substance: the question isn’t whether liberal justices are infallible. It’s whether “they always vote against X” is an accurate or useful way to describe constitutional adjudication. It isn’t
My problem with Roberts dates to pre-Trump days. In fact, I have a problem with the whole judicial system and would like to find a way to implement Hamilton's original prediction. They have way too much power and misuse it routinely. So let me raise Dred Scott, Korematsu, Plessy, Filburn, the Obama care switch and Kelo and see you defend those. And then there is the switch in time that saved nine. That judge was named Roberts too.
Your comment bundles together very different cases across 170 years and treats them as proof that the judiciary “routinely” misuses power. That conclusion doesn’t follow from the examples.
First, invoking Dred Scott v. Sandford, Korematsu v. United States, and Plessy v. Ferguson proves the opposite of your point. These decisions are now universally regarded as grave errors — and they were later repudiated by constitutional amendments or overturned precedent (e.g., Brown v. Board of Education). The system ultimately corrected itself through the mechanisms built into Article V and stare decisis. Pointing to notorious historical failures doesn’t show “routine misuse”; it shows that constitutional interpretation evolves and that the Court can reverse itself.
Second, Wickard v. Filburn and Kelo v. City of New London are controversial, but they are grounded in specific constitutional doctrines (Commerce Clause and Takings Clause jurisprudence). One can argue those doctrines are too expansive, but that is a substantive disagreement about interpretation — not proof that judges exceeded judicial power in the Hamiltonian sense. In fact, Hamilton in The Federalist No. 78 described the judiciary as having “neither force nor will, but merely judgment.” These cases involved interpretation of text and precedent — precisely the role he envisioned — even if you dislike the outcomes.
Third, the “Obamacare switch” refers to National Federation of Independent Business v. Sebelius, where Chief Justice Roberts upheld the individual mandate under Congress’s taxing power while limiting it under the Commerce Clause. That was not a blank check for federal authority; it actually narrowed Commerce Clause doctrine while sustaining the statute on an alternative constitutional ground. Calling it a “switch” implies political motivation, but the written opinion laid out a doctrinal path consistent with long-standing deference to Congress’s taxing authority.
Finally, the “switch in time that saved nine” refers to the 1937 shift during the New Deal era, often associated with Owen Roberts. Modern scholarship disputes the simplistic narrative that it was a political capitulation to court-packing threats; the doctrinal evolution had begun earlier, and voting patterns were more complex than the slogan suggests.
If the argument is that the Court sometimes gets things wrong, that’s historically undeniable. But isolated landmark errors — especially ones later overturned — do not establish systemic lawlessness or “too much power.” The judiciary’s authority remains bounded by text, precedent, amendment, jurisdictional limits, and ultimately by constitutional change through the political branches and the states. Disagreement with outcomes is not the same thing as proof of institutional illegitimacy.
Have it your way but as far as I am concerned, all judges are just politicians in black robes and completely immune from accountability
That claim collapses important constitutional distinctions into a slogan.
First, judges are not “just politicians.” Politicians are electorally accountable actors who campaign, fundraise, and respond directly to voter coalitions. Federal judges, by contrast, are insulated from elections precisely so they can decide cases without immediate political pressure. You may disagree with their reasoning, but structural independence is the opposite of electoral politics.
Second, they are not “completely immune from accountability.” Federal judges can be impeached and removed by Congress. Their decisions can be overturned by higher courts, reversed by later precedent, limited by statute (within constitutional bounds), or superseded by constitutional amendment. State judges in many jurisdictions are subject to elections or retention votes. That is not immunity.
Third, equating unpopular outcomes with political motivation assumes what it needs to prove. A ruling that aligns with one party’s interests does not establish partisan intent; constitutional interpretation often overlaps with policy preferences because the Constitution allocates power in ways that have policy consequences.
Finally, if judges were merely politicians in robes, we would expect rigid party-line voting in nearly every significant case. In reality, there are unanimous opinions, cross-ideological majorities, and fractured alignments that defy simple partisan mapping.
Criticizing specific decisions is fair. But declaring the entire judiciary indistinguishable from partisan officeholders oversimplifies both the design of the system and the real mechanisms of accountability built into it.
The author frames his approach as a disciplined evolution of trade nationalism, moving from executive improvisation to a more lawful and sustainable foundation. But it’s difficult to see how this differs from the logic that has trapped Argentina in Peronist cycles for decades: tariffs as instruments of sovereignty that erode competitiveness, fuel inflation, and entrench stagnation, while failing to build genuinely competitive productive capacity through the free exchange of technology, labor, and capital. What prevents American “industrial policy” from becoming the same story at a higher income level—a politics of control dressed up as national renewal? Isn’t this, ultimately, the central planner’s dilemma that undid the Soviet Union and every other economy that mistook control over production for prosperity?
Really, Oren? Are you seriously saying the president should have the authority to unilaterally impose a tax on Americans? That was the sole motivation for the Boston Tea Party. Only Congress can levy taxes. Tariffs are taxes, not tools to regulate. Go back and re-read Article I, seems you need a refresher.
A lot more than about taxes at the Boston Tea Party.
Well, sure, but the tea tax was the main complaint. But with Boston, there’s always something else.
Great article Oren, thanks for the heads up here on the tariffs. We are in a war on many fronts. Unfortunately, we must take sides. And it all is going to get uglier as we move into the 2030's. Hope we can keep the country together. Might need another Lincoln down the road?!
Excellent synopsis. An-oft complex and murky subject made the more easily understandable and digestible by virtue of clarity and precision aforethought. Well played, sir!
Oren Cass, comedian:
On the reciprocal tariffs, post SCOTUS ruling:
"Those require a more thorough process, but imposition is an entirely credible threat, and countries that have already entered negotiations or reached deals will likely recognize that they would be unwise to back out now."
Bwahahah. . . .more thorough process. Yeah right, that's exactly what the Trump admin is known for - discipline and hard work.
"If he [Trump] uses the loss of IEEPA tariffs as an excuse to let the rate on China drift lower, that would be a concerning sign for the summit and it would undermine the ongoing effort to push supply chains out of China, which depends on keeping tariffs there meaningfully higher than they are on other countries."
Stop smoking the hopium Oren. Trump already caved on NVIDIA chip sales to China. Why wouldn't he just cave on this too? He's not going to spend any time thinking about this.
"He had made a strategic choice to move quickly with the authority that was most flexible, even if not the one on firmest legal ground. The year since has given his team time to make enormous progress on negotiations and to initiate processes that will provide a more stable foundation for continued efforts."
No, he made the choice to move quickly because he's lazy and has no desire to try to work the channels that are actually constitutional. On anything.
"A better framework for the global trading system, and better incentives for domestic investment, were always going to require firmer foundations than IEEPA. It is good to move toward them."
Yeah, you're right. Only it won't be Trump that moves towards them.
Thank goodness. 😅
So according to Oren (and Trump) a local Canadian politician putting up ads about what Reagan said or didn’t say created a national emergency otherwise even by Trump logic the tariff he hit Canada as a retaliation would have been unconstitutional, illegal. It’s fine that you support tariffs as a means of economic policy and you are fully capable of making valid arguments supporting a policy. But still referring to what was clearly from day one against the law as ‘liberation day’ is simply shameful. You can do better.