Trying to Make a Modicum of Sense Out of Trump's "I Can Destroy It, So Why Can't I Tax It?" Nonsense
In "Trump's Almost Completely Bonkers Reaction to the Tariff Ruling," Professor Dorf bent over backwards to provide arguments that could justify adding the modifier "almost" to his headline. I trust that he was not injured by those calisthenics, although I do imagine that such an effort at being scrupulously fair pushed the limits of human endurance. Specifically, Professor Dorf wrote this:
Trump echoed (albeit less coherently) an argument that Justice Kavanaugh (joined by Justices Thomas and Alito) made in Part II(D) of his dissent: IEEPA [the International Emergency Economic Powers Act] authorizes the president to impose severe trade restrictions such as embargoes, so it follows that IEEPA allows him to "take the far more modest step of conditioning . . . imports on payment of a tariff or duty." This could be the basis for a coherent argument, but it happens to be wrong.
Interested readers should definitely read Monday's column in full, the second half of which explains through several useful hypothetical arguments how the dissenters and Donald Trump made a hash of statutory interpretation. Here, however, I want to analyze Trump's possibly-coherent-adjacent claims about the Court's reading of the statute in question from a different angle.
It could surely surprise no one that Trump has continued to say unhinged things about the Court's ruling against him. In his weird (even by his standards) State of the Union speech last night, for example, the transcript -- which is the only way I could expose myself to any of this -- included these words in this order:
Countries that were ripping us off for decades are now paying us hundreds of billions of dollars. They were ripping us so badly. You all know that. Everybody knows it. Even the Democrats know it. They just don’t want to say it. And yet these countries are now happy and so are we. We made deals -- the deals are all done and they’re happy. They’re not making money like they used to. But we’re making a lot of money. There was no inflation, tremendous growth.Sure. He also decided to claim that his new regime of also-illegal tariffs is actually somehow better than the regime that he had defended and bragged about for months:
So, despite the disappointing ruling, these powerful countries saving, is saving our country the kind of money we’re taking in, peace protecting — many of the wars I’ve settled was because of the threat of tariffs, I wouldn’t have been able to settle them without — will remain in place under fully approved and tested alternative legal statutes. And they have been tested for a long time. They’re a little more complex, but they’re actually probably better — leading to a solution that will be even stronger than before. Congressional action will not be necessary. It’s already time-tested and approved. And as time goes by, I believe the tariffs, paid for by foreign countries, will, like in the past, substantially replace the modern-day system of income tax, taking a great financial burden off the people that I love.
To be clear, the across-the-board tariffs that he has now imposed are not time-tested. Again, that should surprise no one. In any event, we will soon see the countries that are not at all "now happy" nullifying the deals that they made under false pretenses, just as we will see the courts grind through the new tariffs that Trump claims to have preferred all along.
Even so, I do want to return to the question that I noted above, which is whether Trump was in any way correct to say this in his initial remarks last week after the Supreme Court ruled against him:
I am allowed to cut off any and all trade or business with that same country. In other words, I can destroy the trade, I can destroy the country. I’m even allowed to impose a foreign country-destroying embargo. I can embargo, I can do anything I want, but I can’t charge one dollar because that’s not what it says, and that’s not the way it even reads. I can do anything I want to do to them, but I can’t charge any money. So I’m allowed to destroy the country, but I can’t charge them a little fee. I could give them a little two cent fee, but I cannot charge under any circumstances. I cannot charge them anything.
Note first that Trump again makes clear that he views himself as a monarch, because it clearly never even occurred to him to say that even thought he "can’t charge them a little fee" and he "cannot charge under any circumstances" and he "cannot charge them anything," Congress could do all of those things. Congress could write a law that authorizes exactly what Trump says incorrectly he is already authorized to do. It would be terrible policy, but the Republican majorities in both houses of the the current Congress have passed plenty of terrible laws (the most obvious being the ugly budget bill last year). Even they, however, seem unwilling to do something that gives Trump carte blanche.
Even so, what of Trump's complaint? He clearly has no idea what any of this means, but based on his words, he seems to think of this as something of a lesser-included offense idea, because he says that it is crazy for the Court to hold that IEEPA allows him to destroy things but not to inflict less severe harms.
Because "the power to tax is the power to destroy," however, even that does not work. Still, I will limbo my way down to offering the thought that maybe, possibly, Trump is saying that taxing is different only in how it could allow him to destroy something. Like Professor Dorf's efforts to be fair, this requires dangerously extreme mental gymnastics, but I did some stretches before getting started today. I'll be fine.
[Side note: per Justice Peckham, "It is not only the power to destroy, but it is also the power to keep alive," Nicol v. Ames, 173 U.S. 509, 515 (1899)). But I digress.]
The argument that I am imputing to Trump essentially says that it makes no sense to take only one deadly weapon off the table when there are other deadly weapons still within reach. This boils down to a specific example of the more general observation that governments can change people's and businesses' behavior through one or more of three paths: direct regulation, taxation, or authorized litigation, the latter being the legal right for people to sue each other. (Cf. Texas's SB8, which infamously allowed private citizens to become anti-abortion enforcers when the state could not yet do so directly.)
A particularly annoying version of this triumvirate showed up years ago during the ginned-up outrage over taxes on sugary sodas, as I discussed in a 2012 Verdict column. That debate was especially frustrating because the people who attacked soda taxes claimed (correctly) that there were other ways to reduce the public's consumption of unhealthy amounts of sugar, but they would then move the goal posts. "You mustn't change behavior by taxing things, but don't worry, because you can directly regulate it. But regulation is bad, so you mustn't do that, either. But don't worry, because people can sue soda manufacturers if their products are harmful. But America is too litigious, so you mustn't allow all those lawsuits. But don't worry, because you can always tax things to reduce their harm." Yeesh.
In any event, is Trump saying that allowing him to put trade embargoes in place and to regulate trade directly are the logical equivalents of allowing him to impose tariffs, so why not allow him to "do tariffs"? Even if that were his argument, it would be wrong, because "I can do the same harm in several different ways" does not amount to saying that he is doing the same thing. The end might be the same, but the means are different.
Again, a law could be written that allows a President to use any method to get to the same end, but that is not how this law was written. I can, as an odd example, imagine an argument for writing a law that says that "a person cannot stab or shoot another person" but that does not also say that "a person cannot try to bore another person literally to death." In something like the opposite direction, Trump's actions regarding tariffs are the best argument for giving a president the ability to use extreme means but not more subtle means.
Even Trump understands that his powers under IEEPA are extreme, although that is almost surely not why he is angry. He recently repeated that "tariffs are my favorite word in the dictionary," which means that he truly does not think that tariffs are neither better nor worse than import quotas or embargoes. He is stuck on tariffs because somewhere along the way he became convinced that they, and they alone, are the magic elixir. But giving a President the ability to impose, increase, remove, re-impose, and adjust taxes at his whim is too much, even for this Congress.
As one final point of possible comparison, I should note that I was among the people who argued most forcefully that the "mandate" under the Affordable Care Act was a tax, which made that law a valid exercise of one of Congress's core constitutional powers. Recall that, even though Chief Justice Roberts in NFIB v. Sebelius went along with the insane action/inaction distinction under the Commerce Clause, the ACA survived because he switched sides on the taxing power question.
That, however, was not an argument that two (or more) things are different means to the same end. It was instead saying that two things are in fact the same thing, merely with different labels. It is thus a substance-over-form argument. The mandate to buy health insurance under the ACA was in fact a tax, because it functioned as a tax: paying money to the government after making an economic decision that triggered a legal obligation to make such payment. By contrast, even the most forgiving version of Trump's imputed argument does not claim that tariffs are embargoes or quotas.
In the end, whether one prefers Professor Dorf's version or mine, the bottom line is that the 6-3 majority in the tariff case was right to say that the law in question prevented Trump from doing what he wants, even as the law might allow him to do other stupid or destructive things. He might still do those other stupid and destructive things -- and possibly worse -- but last week's decision was still a victory for the rule of law.
- Neil H. Buchanan