Coyote Blog

I have made no secret of my opposition to Trump's tariffs.  They are absolutely terrible economic policy, though that is a legislative and political issue and not one to be addressed by courts.  What was an issue for courts was whether the President actually had the authority to unilaterally issue such sweeping tariffs.  I and many others questioned that authority from day one:

The power to set tariff's is enshrined in the Constitution (that document Republicans used to care about) as a power of Congress. Weak-kneed and lazy Congresses have delegated some of this power to President's, but only very narrowly. The picture is complicated and illegal actions by the President can be hard to review in court. But looking at the 4-6 major delegations to the President of tariff authority, it is difficult to see that any of them apply simultaneously to every country on Earth and every single product manufactured anywhere. Certainly there is no precedent for them being enacted by the President on anything but a far far narrower basis (eg steel from China).

A three-judge panel from the US Court of International Trade (which I will confess I never heard of but apparently has jurisdiction over such issues) made up of two R-appointed judges and one D-appointed judge unanimously overturned the tariffs and issued a permanent injunction against them.

The Constitution assigns Congress the exclusive powers to "lay and collect Taxes, Duties, Imposts and Excises," and to "regulate Commerce with foreign Nations." U.S. Const. art. I, § 8, cls. 1, 3. The question in the two cases before the court is whether the International Emergency Economic Powers Act of 1977 ("IEEPA") delegates these powers to the President in the form of authority to impose unlimited tariffs on goods from nearly every country he court does not read IEEPA to confer such unbounded authority and sets aside the challenged tariffs imposed thereunder.

Good.  I believe that some of the various injunctions against Trump actions are weak and will likely get overturned -- they seem to be more legislative actions than legal ones -- but this one in my mind is rock solid.  I thought Biden's unilaterally forgiving a trillion dollars in student loans was pretty lawless but if anything Trump's "liberation day" tariffs may have been even less legally justified.

Many Republicans have gone all-in on publicly eschewing everything they previously believed in to support Trump on these tariffs, and many have got to be breathing a silent sigh of relief that the court did their work for them in shutting this down.  Though kudos to Rand Paul who is the only major Republican that stuck to his principals and attempted legislative overrides.

Speaking of Republican reactions, I have been particularly irritated at the reality defiance of those who claim that the recent rise in the stock market and consumer confidence are a vote of confidence in Trump.  Here is an example from the previously-willing-to-challenge-Trump folks at Powerline.

For the last four months, essentially every “news” outlet has devoted pretty much every news story to trying to undermine the Trump administration. Among other things, they have tried to persuade us that the economic sky is falling because of President Trump’s policies–whatever those policies may be, and whether or not they have even been implemented. This has made consumers a little nervous, but not nervous enough.

Thus, the May consumer confidence numbers came in today, and they are awesome....

That is why the stock markets are up sharply today.

This is absurd.  The stock market and consumer confidence both crashed - hard - with the imposition of Trump's tariff's.  They have risen each time Trump has backed off, delayed, or scaled back these tariffs.  The market will almost certainly rise again today on the news of the court case.  I guess that is a political strategy of sorts -- announce economy-stomping actions early, watch the market and public confidence tumble, and then take credit for the improvement when you roll back the terrible actions.  This is the equivalent to banging your head on the wall because it feels good when you stop.

For two decades, the US military base at Guantanamo Bay has been a preferred spot to indefinitely detain individuals the US government does not like, mostly accused terrorists.  In most cases these are folks the government would like to imprison for life but whom they don't want to have tried in the US, either because they don't really want to try to prove their accusations or due to public backlash against repatriating some admittedly bad folks.  Whatever the reasons, the net effect is a Constitution-free zone where things we take for granted like due process and habeas corpus don't obtain.

President Obama and his supporters disliked the situation enough to try to reduce the Gitmo population, but he was not willing to bear the political cost of "soft-on-terror" accusations that inevitably come from certain quarters whenever it is suggested someone incarcerated for over 10 years should have access to due process and a fair trial.  Trump on the other hand seems to love the Constitution-free zone, notwithstanding the hypocrisy of this following years of criticism of the Department of Justice for incarcerating certain January 6 rioters without trial.  At the beginning of his term he publicly told the folks down in Gitmo to get ready for 50,000 new inmates, seeing it as a place he could expatriate immigrants (initially presumed to be the illegal ones but since then immigrants with valid green cards and student visas but engaging in un-loved speech).

But apparently he has found an even better place -- the CECOT prison in El Salvador.  We are seeing now that this is one step even beyond Gitmo -- while judges seem to have only limited reach into Gitmo, they do have some.  But they have no reach into El Salvador.

Trump is telling the Salvadoran President that once he is done with illegal immigrants, he is going to start sending "homegrown" criminals.  Via Reason:

President Donald Trump met with Salvadoran President Nayib Bukele in the Oval Office yesterday and said his innermost thoughts out loud: "Homegrowns are next. The homegrowns. You gotta build about five more places [like the CECOT prison]. It's not big enough."

"Yeah, we've got space," Bukele responded. Administration officials chuckled in the background. "I'm talking about violent people," Trump had said a few minutes earlier. "I'm talking about really bad people."

"We always have to obey the laws, but we also have homegrown criminals that push people into subways, that hit elderly ladies on the back of the head with a baseball bat when they're not looking, that are absolute monsters," said Trump.

Attorney General Pam Bondi is reportedly considering legal mechanisms by which Trump could send American citizens to El Salvador's infamous Centro de Confinamiento del Terrorismo.

I struggle to find any historical precedent for this craziness.  Bottany Bay and Georgia come to mind, but those were still under the administrative control of the government that was shipping out criminals.

One of the appeals of Trump has been that he has no equity in the system, and thus is willing to challenge the entrenched mess much of government has become.  And if Trump had stuck with DOGE and tweaking government bureaucrats, I would have been entertained.  But the downside of having no equity in the system (combined I think with his age) is that rules and precedents are as meaningful to him as the rules of war are to a guerilla fighter.  I don't think he give a sh*t about setting bad precedents and this is an absolutely awful precedent.

I know there are many Trump supporters that will disagree with me and cheer him on.  They are frustrated with cities that give violent crime a pass and I am sympathetic.  But perhaps this is one way to explain the problem to them:  I believe that President Biden's justice department went overboard on prosecution, over-sentencing, and incarceration of January 6 rioters/protesters.  But if President Biden had decided to follow this Salvadoran incarceration idea himself, then likely there would be hundreds, maybe thousands of Trump supporters sitting in a Salvadoran prison and there would be zero Republicans could do about it now.  Trump loves Salvadoran incarceration because no pardon and no judge can touch them, but the same would be true if his January 6 supporters had been sent down there too.  Trump's pardons would all have been moot, because pardoned or not it would be as hard to get them back out of CECOT as it is to get innocent US citizens out of Putin's political-hostage prisons.  One of the reasons we are extremely careful with the death penalty (and why I think it should be banned all together) is that there is no appeal or reversal possible once a person is executed.  We are facing the same situation with shipments to El Salvador, and unfortunately Trump considers that a feature not a bug.

As expected, Trump gave notice yesterday to the UN that the US is pulling out of the Paris climate accords.  This marks the second time he has done so, making participation in these accords one of the EO ping pong balls that get swatted back and forth every inauguration day.

The reason this is possible is that supporters of these accords have never submitted the agreement to the Senate for ratification, which would make the terms of the agreement more legally binding and much harder to casually reverse.  Per Article II, Section 2 of the Constitution:

[the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;

Woodrow Wilson spent a huge amount of time, most of his remaining prestige, and probably his remaining health negotiating the Versailles Treaty, but it was all for nothing in this country because the Senate did not approve the treat, which is why we were never in the League of Nations.**

My understanding is that something like the Paris Climate Accords there is actually a potentially less daunting way to adopt the accords as US law without getting a 2/3 vote in the Senate -- legislation could be crafted with rules mirroring the commitments in the Accords and then passed normally through the House and Senate.

Neither of these courses were pursued by President Obama or President Biden, even when they possessed Congressional majorities.  This is likely because -- whatever their public position is on climate change -- legislators know that adopting economically expensive mandates in an international agreement that are not matched by countries like China and India (see below) is wildly unpopular.  And so the basic approach has been to negotiate and "commit" the US to these agreements by unilateral executive action, and then attempt to use the regulatory tools available to the Administration to attempt to comply. [A more cynical view is that US Presidents have done what every other world leader has done in signing these pacts-- sign them as a virtue-signaling position with no idea of how to meet the commitments and perhaps no real intention of doing so].

Update:  This is really a stunning chart.  We have returned to the same carbon intensity we had before the Civil War.

** It is also why US wine producers, at least until a new treaty with the EU was approved in 2006, could legally use the word "champagne" to describe certain types of sparkling wine.  The history on this is complicated, and goes back further, but essentially the international agreement to not allow any wine outside of the Champagne region of France to use that name was embodied into the Treaty of Versailles, which the US did not ratify.  There is an organization called the CIVC which is essentially the Champagne union that defends the champagne IP, sometimes to ridiculous ends (reminiscent of the NFL and the word "Superbowl.")  I remember they sued Apple over calling a gold/bronze iphone color "champagne".