Coyote Blog

This should not have to be explained, but the Constitutional intent of the Supreme Court was not to solve social / economic / military problems -- that is the role of Congress.  It's role was not to properly execute and administer these laws -- that is the role of the President's and the Cabinet departments he overseas.  The Supreme Court has the important but narrow role to judge whether the law is being followed.  Sometimes this requires judgement of complicated legal cases that touch on grey areas or contradictions in the law.  Sometimes this is to rule on the legality of a piece of legislation itself, to judge whether it conforms to the ultimate law embodied in the US Constitution.

Unfortunately there is a growing populist theory that the Supreme Court's job is not to strictly follow the law but to act as a sort of legislature of last resort, to impose new law when Congress is deadlocked on an issue or to override "Bad" law, with "bad" defined based on the speaker's preferences.

While this theory has mainly been propounded by the Progressive Left, it increasingly is used by whatever party that occupies the White House to expand the power of the President vs other branches of government.  Depending on your party, it is either totally legal for the President to unilaterally cancel all student loans but illegal to unilaterally create new tariffs -- or vice versa.  Unfortunately, even the Supreme Court Justices themselves seem susceptible to this. To their credit only Barrett, Gorsuch, and Roberts were on the same side of both cases in the Supreme Court.  All the six other justices switched sides -- I am sure entirely coincidently -- siding with the President in each case that most closely matched their party affiliation against the President that did not.

One would think, given how many times Trump has won of late at the Supreme Court, that he would try to reinforce their legitimacy.  Sure he has lost some, but after all, if it were not for the Supreme Court overruling any number of lower court challenges and injunctions against him, most of his agenda would be totally stalled.

But no, Trump cannot help himself and acts like a spoiled child whenever he loses even the smallest battle.  His response to the Supreme Court tariff decision included this, via Reason:

"The Supreme Court's ruling on tariffs is deeply disappointing, and I'm ashamed of certain members of the Court, absolutely ashamed, for not having the courage to do what's right for our country," Trump told reporters on Friday. Those "certain members," it became clear, were Justices Neil Gorsuch and Amy Coney Barrett, who had the temerity to vote against Trump even though he appointed them to the Court.

Here is Trump reinforcing the heart of the growing misconception about the role of the Supreme Court.  Their job is NOT to do what is right for our country.  Their job is to judge cases against the standard of the law.  The law used as a yardstick may be awesome or it may be deeply flawed, but it is not the Supreme Court's job in that case to fix it.  Of course, Trump cannot stop himself from ridiculous name-calling, even of (or especially of) his potential allies:

"The Supreme Court's ruling on tariffs is deeply disappointing, and I'm ashamed of certain members of the Court, absolutely ashamed, for not having the courage to do what's right for our country," Trump told reporters on Friday. Those "certain members," it became clear, were Justices Neil Gorsuch and Amy Coney Barrett, who had the temerity to vote against Trump even though he appointed them to the Court.

Apparently he believes the justices ruled against him because:

" Gorsuch and Barrett "may think they're being politically correct," he averred, but "they're very unpatriotic and disloyal to our Constitution." He suggested they were "swayed by foreign interests and a political movement that is far smaller than people would ever think."

Although the Americans who oppose Trump's agenda represent "a small movement," he said, they are "obnoxious, ignorant and loud," and "I think certain justices are afraid of that. They don't want to do the right thing. They're afraid of it."

Jacob Sullum argues that for Trump, it is all about loyalty and nothing else:

Thomas, Alito, and Kavanaugh did not agree with this particular application of the major questions doctrine. In Trump's view, that shows "their strength and wisdom and love of our country." By contrast, Gorsuch and Barrett (and presumably Roberts too) turned out to be "very unpatriotic and disloyal to our Constitution."

Those assessments have nothing to do with the merits of the justices' legal reasoning. They hinge entirely on whether the justices ultimately took Trump's side. Because Trump equates love of country with love of him, he sees any ruling against him as "unpatriotic." And because he recognizes no distinction between respecting the law and respecting him, he thinks justices are "disloyal to our Constitution" when they disagree with him.

I will not go back into my arguments about why tariffs were both a bad idea and illegally imposed.  That is all here.  I do have a couple of additional thoughts though:

1. It is absurd to call this decision unpatriotic.  At some level, legal decisions should always be neutral and have little to do with patriotic feelings -- patriotism is for Congress and Presidents.  But ironically, even given that, this is perhaps the most patriotic decision by the Supreme Court in recent memory.  A key part of the freaking Declaration of Independence is about the arbitrary imposition of tariffs.  Remember the Boston Tea Party?  "[the King] has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:...For cutting off our Trade with all parts of the world [and] For imposing Taxes on us without our Consent."  How can there be anything more patriotic than restoring the original intent of the Declaration of Independence.  Basically, the Supreme Court just threw Trump's tea in the water.  God bless America.
2. Trump had every opportunity to impose tariffs through an entirely Constitutional avenue, ie via Congress.  He did not even try.  I am not sure it even occurred to Mr. "art of the deal" to try.  And this is one issue (it pains me to admit) where there might have been the possibility of bipartisan agreement -- after all, Democrats have been the main supporters of tariffs over the last several decades.  Bernie Sanders in particular is a huge tariff hawk.  Of course instead Trump as taken the approach of mocking the Congress, even to the extent that we saw the Attorney General using childish insults against the ranking minority member of the her own key oversight committee in Congress.
3. Congressional gridlock on national issues that are narrowly split is a feature, not a bug.  Jamming through radical agendas based on a 51-49 popular vote or legislative body advantage can be tremendously damaging -- just look at Minnesota where the Progressive Left has slammed through a quite radical agenda based on a one vote margin in their legislative chamber.  There is too much impatience on this stuff -- eventually issues ripen and there tends to be a preference cascade in one direction or the other and progress is made in the legislature.   End-running this process via the Executive or even worse the Supreme Court is guaranteed to make things worse.
4. Kudos to Gorsuch, who I have not always agreed with, but with whom I am 100% on board with on this statement from the decision:

For those who think it important for the Nation to impose more tariffs, I understand that today’s decision will be disappointing. All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason. Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.

Dear Republicans,

I am sorry I have not had time to write sooner, and I only have time for a short missive.  But I want you to know that you are NOT going to like living with the precedents that Trump is setting right now for Presidential power.

I know you have convinced yourselves that you will be in power forever.  Believe me, I know -- the Democrats thought the same thing after 2020 and even more so after the 2022 election.  And I know some of the court challenges at the margin have been nutty -- the injunction against Congress legislatively cutting funding to certain organizations was completely baseless, for example.  These crazy court challenges at the bleeding edge have allowed you to convince yourselves -- wrongly -- that all of Trump's actions are perfectly normal and legal and all the legal actions are unjustified.   You will not like future administrations firing Republican commissioners from typically bipartisan organizations.  You will not like Presidents setting tariff rates (or by extension other tax rates) at will.  You will not like a Federal Reserve that is a lapdog to the current administration (perhaps the only thing that can make the Fed worse than it is already).  You will not like Presidential powers that trump state and local governments on even the smallest details.

You all need to relearn Coyote's Law -- never give the government (or particularly the President) powers you do not want your worst enemy to wield, because sure as hell your worst enemy will be in charge some day.  Yes, I know previous administrations pushed the envelope on Presidential power.  Unfortunately, when faced with an opposition party in the prior administration that took a bad precedent from level 4 to an 8, both parties will likely NOT respond by de-escalating but by pushing the 8 up to 11.

Why so few posts?  Because the current political environment is exhausting.  On many issues the major players are half right and half wrong, but no one wants to hear that.  The crowds are either all-in on Trump or all-in on the opposition and trying to point out nuance is both unwelcome and more time-consuming than the news cycle allows.  A few examples:

• On immigration, I think the sane majority would like to see bad actors and gang-bangers sent back to their home countries, but have little stomach for uprooting the 10-year resident construction laborer and his family in the middle of the night and sending them away.  Trump wants to send them all away, even the peaceful and productive.  Sanctuary cities like LA want to protect everyone, even the violent gang-bangers.
• With universities like Harvard, it is long past time to enforce some discipline on spending and stop knuckling under the the "its all science, go away peons" elitism.  But institutions like Harvard still contribute a lot to this country and Trump's actions often smack of vendetta rather than thoughtful policy.
• Everyone with a uniform opinion that court injunctions of the Trump administration are universally correct or universally wrong are all misguided.  It is a total mixed bag.  Trump, as with tariffs, has grossly overstepped his statutory authority and IMO it was correct to stop him.  In other areas, like laying off administration employees, it is astounding to me that the judiciary can be of the opinion he can't fire anyone.

A few other thoughts before I likely join the ostrich party and stick my head in the sand and ignore this all:

• I have written for years that I do not understand why well-meaning folks on the Left do not devote more time to government efficiency and spending issues.  For a couple of reasons.  First, every bit of waste is money that could have been spent towards policy goals.  Second, waste undermines public support for the type of programs (eg SNAP) that they support. For years the grandfather of DOGE was William Proxmire, a Democrat from the Wisconsin progressive tradition.  But there seems to be zero interest on the Left in spending accountability, as demonstrated by the huge opposition to DOGE.
• Both parties are violating coyote's law, establishing precedents the WILL NOT LIKE when the other party uses them.  R's played the find-a-judge game a bit in the Biden administration but you can be sure they will be all-in on the game next D administration.  And of course Trump is establishing Presidential power precedents that the next D president will LOVE to use.
• National injunctions are generally ridiculous and need to be reformed.  I say this having benefitted from several in my business life.  I am out of my business but for years under Obama and Biden the Administrations kept imposing minimum wages on recreation concessionaires that ended up being enjoined for years and years, only to be allowed when they finally had their day in court (and overturned a few months later by a Trump EO).
• In my mind there is no nuance -- Trump is all wrong on tariffs.  They are bad even if other countries have high tariffs on us.

The whole Guantanamo issue has to be one of the great bait and switches of our time.  The fundamental human rights abuse was always the notion that civilians could be seized by the US Government and held, as they say in Britain, at the President's pleasure  (ie as long as the Administration wants, up to and including forever).

Somehow, this whole issue got perverted into a debate about Gitmo, rather than detentions per se.  I warned any number of times that if we kept focusing on merely the location of detention, rather than detention itself, it would give the government cover to close the facility and declare victory, while continuing the abusive practice of indefinite detention.

Unfortunately, I was right, both in this fear and my fear that Obama, once give presidential power, would be reluctant to eschew it.

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Such an order would embrace claims by former president George W. Bush that certain people can be detained without trial for long periods under the laws of war. Obama advisers are concerned that an order, which would bypass Congress, could place the president on weaker footing before the courts and anger key supporters, the officials said.

Unsurprisingly, after talking about various approaches for Congressional or Judicial oversight of Administration detention decisions, the Administration has apparently dropped plans for this.  Even the "security courts" of which I have always been suspicious (I always picture a jury full of TSA airport security screeners) have been ruled out by Obama.  We are back to the Bush doctrine of detention at the President's pleasure.

While I find the torture recommendations in John Yoo's memos awful, they worry me less than the general assumptions embodied in them about presidential power.  After all, the issue of allowable tortures is a narrow issue that can be dealt with efficiently through Congressional legislation, and is almost certainly something to be disavowed by the next administration.

Based on historical precedent, what is less likely to be disavowed by the next administration are the broader definitions of presidential power adopted by GWB.  It is in this enhanced theory of presidential power where the real risk to the nation exists, and, unfortunately, there are all too few examples since George Washington's declining to run for office a third time of president's eschewing power.  Already, folks on the left are crafting theories around using the imperial presidency to address their favored issues, such as the University of Colorado's proposal for implementing greenhouse gas controls by executive fiat.

From Megan McArdle:

People are so wrapped up in their own irrational bundles of ideas that they seem unable to conceive of any bundle that isn't

a)  theirs

b)  the exact opposite of theirs

It just floors me when people want to argue that the current conservative/liberal or Democrat/Republican positions are internally consistent and the logical (or even only) way to parse the world of ideas.  Particularly when I can start naming so many issues where the two sides have swapped positions over the last few years.  For example, left/right opinions on unchecked presidential power tend to have a lot to do with whose guy is in office.  Bill Clinton proposed most of the Patriot act  as his anti-terrorism bill way back in the mid-nineties, and was opposed in Congress by Republicans led by John Ashcroft.