Previously, I have written about the unconstitutionality of Trump's tariffs and how this resembles King Charles I's attempt to raise taxes without Parliamentary approval through "ship money."
Those federal judges who claim to be "originalists" or "textualists" in adhering strictly to the original meaning of constitutional or statutory texts will have to rule that Trump's tariffs are unconstitutional. If they don't, they will show the dishonesty of their profession of originalist jurisprudence because they will show that they are willing to ignore the original meaning of the legal texts if it contradicts their political ideology of Trumpism.
As I indicated in that earlier post, when the U.S. Court of International Trade ruled in May that Trump did not have the legal authority to impose tariffs, Trump denounced Leonard Leo and the Federalist Society for giving him bad advice about his judicial appointments. He sneered that Leo was a "sleazebag" and "bad person" who "probably hates America."
Now we have just had another court ruling that will provoke Trump. The United States Court of Appeals for the Federal Circuit has upheld the decision of the Court of International Trade that Trump's tariffs are unconstitutional because Trump's claim to have absolute power to impose tariffs violates both statutory law and constitutional law.
Trump has appealed to the International Emergency Powers Act of 1977 as authorizing his power over tariffs, but that law does not even mention tariffs; and in the 50 years since the enactment of IEEPA, no president (prior to Trump) has invoked that law as authorizing presidential power over tariffs.
Moreover, the Constitution is clear that only the Congress has the power "To lay and collect Taxes, Duties, Imposts, and Excises" (Art. I, Sec. 8).
We now have two federal court decisions making textualist arguments for the unconstitutionality of Trump's tariffs.
But now this latest decision will be appealed to the Supreme Court. And we will have to see whether the Supreme Court Justices who profess to be jurisprudential originalists are truly committed to that position, or whether they will override the meaning of the legal texts in order to give Trump the ruling that he wants to uphold his dictatorial powers as a king above the law.
Trump has posted that this latest decision comes from a "Highly Partisan Appeals Court." This was a 7 to 4 decision. Of these 11 judges, 8 were appointed by Democratic presidents (Clinton, Obama, and Biden). 3 were appointed by Republicans (George H. W. Bush and George W. Bush). Perhaps that's what Trump means by a "highly partisan" court.
But one of the Republican appointees did vote with the majority. And the 4 dissenters were evenly divided between 2 Republican appointees and 2 Democrat appointees. Is that a "highly partisan" vote?
This court upheld the decision of the U. S. Court of International Trade that Trump's tariffs were unconstitutional. This was a unanimous decision of a three-judge panel. Of the three, two were Republican appointees (Reagan and Trump). One was a Democratic appointee (Obama). Obviously, then, this was not a partisan decision by these judges. After all, one of the three was appointed by Trump himself.
What's most interesting about Trump's criticism of these decisions is that he makes no attempt to refute the argument of the judges that the original meaning of the legal texts--both statutory and constitutional--denies Trump's absolute power over tariffs. Clearly, originalist or textualist jurisprudence does not favor Trump. That's why Trump denounced Leonard Leo and the Federalist Society.
