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The Missing Branch
The headlines are full of stories about fights between federal judges exceeding their authority in response to some questionable uses of presidential authority. If only there were a third branch to sort these issues.
With millions of illegal aliens within our borders, a requirement of a lengthy hearing process to be held in the jurisdiction preferred and selected by the arrestee’s lawyers could effectively gut enforcement of immigration laws. The courts will require (see what SCOTUS said in Trump v. J.G.G. et al.) some kind of process. It is not clear what form that will ultimately take if left entirely to the courts. Golly, if only there were some branch of government that could authorize and fund some streamlined hearing process to both satisfy due process and permit efficient enforcement by eliminating gratuitous judicial interference and procedural delays.
Congress has the express authority to establish tariffs but is currently silent while statutory emergency powers are cited to address a trade imbalance that has been around for half a century (a rather lengthy emergency, it would seem). Maybe if there was some legislation that said something along the lines of, If the President is not satisfied that a country has not negotiated fair trade in good faith by such and such a time, pursuant to the criteria laid out, then a tariff from the attached table will apply. The missing branch could thus both aid the art of the deal in the 4-D chess that Trump is allegedly playing and reassure markets and allies that this is not an ad hoc policy of pseudo-autarky with permanent trade barriers.
The DOGE team has uncovered an astonishing range of waste, abuse and fraud. The legislative bad news is that the 1974 Impoundment Control Act makes it very hard for a president to refuse to spend money. The good news is that the same bill created a rescission process. The president can ask for cuts in an expedited process that cannot be filibustered. Why not a new routine of submitting batches of DOGE-uncovered fiscal atrocities presented by the president directly to the House and Senate Appropriations Committees to begin the process of having the cuts ratified? If Congress never acts on the DOGE-inspired cuts, it is a certainty that some federal judge will rule that all cuts exceed presidential authority, with some risk that SCOTUS will agree, however reluctantly, and stall the best efforts of DOGE indefinitely.
Forcing Democrats to vote on specific bills to address illegal immigration and egregious waste and fraud is also a possible boon to GOP House re-election chances. Democrats going on record to support making it hard to remove gang members and for funding rich grifters and LGBTQ coloring books for Peru is not a winning platform in most districts, even majority Democratic ones. This kind of legislative action also creates a justifiable perception of an active, productive, goal-oriented Congress worth re-electing. Granted, that would be a really novel, untried political approach, but why not give it a shot?
Published in General
So true. With only three teams in the league, there are only three possible cards. With four we’d be able to watch fights with seven different rivalries.
Buying ANY good or service is an unbalanced trade. Buying groceries is an unbalanced trade.
I confess to making unbalanced trades almost every day.
You seem to think that when an American citizen voluntarily engages in an unbalanced trade, giving his own rightful and lawful property in exchange, that he has violated some natural law, and that under the Constitution, the Federal Government has the authority and responsibility to punish him for it with a discriminatory tax.
Or perhaps you think that the punishment is only due if the person with whom I trade is not a resident of the US? (In which case, the international accountants working for the Federal Government and the IMF and the World Bank will count it toward what you and they have [inappropriately] labeled the “trade deficit”.
Or perhaps I have misunderstood you completely.
The number one team, of the three, has no awareness they are idling. When they work into the night or week-end or curtail the length of their recesses, they think they are working constructively.
I’m in agreement with your thinking but I don’t like some other party tampering with my trade advantage.
Stand down. I did not decry the trade imbalance. I simply questioned whether it is appropriate to invoke emergency powers to address something that has been the case for fifty years. IF it is appropriate and beneficial to impose tariffs, then it ought to be done by Congress. That can be done on a conditional basis to grant POTUS negotiating power.
Whether a trade imbalance is a bad thing or whether a truly level trade playing field is desirable/achievable or whether some more nuanced, particular set of policies would be optimal is not the issue in the OP. How any such goals and choices are approached and achieved does matter and Congress has to be involved.
Feel free to expound on the benefits of trade. Go wild with insights from Ricardo and Smith.
A more difficult question (and largely beyond my skill set and not implicit in the OP) would be how to systematically model circumstances, values and behaviors that would justify a departure from a state of unfettered (presumably efficient) trade.
The point here is that if and when it is US policy to to impose tariffs (for better or worse, perhaps for non-economic policy reasons), it should not be the result of spontaneous sudden executive gestures but debated and effected by Congress and with the approval (non-veto) by the President.
Sorry, I spent some time figuring out that there are in fact three branches: Legislative, Executive and Judicial although the Legislative branch is non compos mentis. I thought Old Bathos was using sarcasm well.
Following the KISS principle, can you perhaps elucidate?
First, thank you for taking my comment and questions in the spirit of respectful, reasoned discussion that they were intended, and for not putting words in my mouth.
I did not understand the second part. Which party is tampering with what trade advantage of yours? To take the example from my Comment: when I buy something from the grocer, do I have a trade advantage? And what precisely is the advantage?
I can see how “Free Trade” can easily be as messy – and as messed-up – as “interstate commerce.”
If it costs more to fuel up a cargo ship in New York than in… oh, let’s say Caracas… is that an impediment to “Free Trade?”
If not, why not? Especially if taxes on the New York fuel may have been added specifically as one of those “tariffs” that isn’t called a “tariff” and so the “experts” claim it’s not a “tariff” but clearly it really is?
When I shop at the grocer I may or may not have a trade advantage when buying products I determine I must have. On discretionary purchases I only buy those things where I think I have a trade advantage, recognizing that may only be my imagination. IOW, I purchase things I want but don’t need if the price is right. When the grocer sets the price at levels where I choose not to buy, I have my perceived trade advantage altered and possibly become a disadvantage. If the product is a needed item, the grocer is taking advantage of my need although probably just passing it on through the supply chain.
I’m just a weirdo.
If by “impediment to ‘Free Trade’ you mean…
“some person violating our constitutional right to trade our lawful property and services for those of another person”, then the answer is “No.”
Because the rightful owner of the goods and services we wish to trade for has constitutional rights that are exactly equal to ours. That is the meaning of our foundational statement of belief that “All Men are created Equal”. He may make make an offer to fuel our ship at whatever price he pleases.
Our American Constitution puts foreign affairs as well as all interstate and international commerce under the authority of the federal government. I don’t buy from TEMU because of what I see or hear about what is behind that process. If the federal government implements actions that inhibit that market at a national level, I’m OK with that as an American voter.
Even the products you determine you must have, probably have different prices – as well as levels of quality – depending on where you purchase them. So you still have at least some trade advantage, unless you’re the kind of person who will only go to certain places, no matter what.
Thanks for answering my question. (And once again for doing it in a respectful manner!)
When I go to the grocer and have a trade advantage, who is the party that tampers with it? The grocer?
Do you think there’s a constitutional right to not have taxes on fuel?
Not if the government – ours or theirs – says they can’t.
With millions of illegal aliens within our borders, a requirement of a lengthy hearing process to be held in the jurisdiction preferred and selected by the arrestee’s lawyers could effectively gut enforcement of immigration laws.
Lengthy? Yes. But it shouldn’t be asking too much for the authorities to establish that the person in question is who they think he is – and establish that before deportation. The sloppiness that we’ve seen undermines the deportation mission.
Good post, Old Bathos. As to Congress taking back its authority to determine taxes (tariffs), Rand Paul has a bill that sounds pretty good to me. I’ve written to my senators and representative, asking them to support this.
No. The Constitution authorizes Congress to levy taxes.
If the US Government tells a citizen that he may not offer to fuel a ship at whatever price he pleases, unless there is a Constitutional justification, then it is violating his property rights. If a foreign government tells a US citizen he may not offer to fuel a ship at whatever price he pleases, unless there is a Constitutional justification, then it is committing a crime against the citizen.
Taxes – and fees, etc – often have the same effect as tariffs, just a different name.
They are, in effect, telling everyone that nobody is allowed to fuel a ship for less than the tax.
Are all of these points clear? If not please quote the sentence that is not clear and say what is unclear about it, and I will try to clarify it.
Do you now agree with any of my responses? If so, which ones?
This country was founded by smugglers and customers of smugglers. Just sayin’.
And, as Dennis Miller noted, “They fought a revolution over a tax on their breakfast beverage, and it wasn’t even coffee!”
The New York Civil Liberties Alliance and an importer of goods is suing the Trump administration for imposing tariffs by executive fiat, rather than asking Congress to use its legislative power to increase tariffs.
Trump’s tariffs could face more than one legal challenge.
At issue is a nearly-50-year-old law, the International Emergency Economic Powers Act, that Trump is citing to impose tariffs.
https://www.politico.com/news/2025/04/04/first-lawsuit-filed-against-trumps-tariffs-00273646
This has been The Congress action pattern, i.e. lack of action, towards Executive Branch actions for close to 40 years now. Seems Congress is the entity with standing to act and they don’t need to go to court.
The system gets weird when Congress checks out. You would think that a suit claiming that POTUS is usurping the power of Congress would require asking Congress if it cares.
Even if a simple majority of the members of Congress think the President should have the power to tax, the Constitution says otherwise.
So, even if Congress doesn’t care, absent a new Constitutional Amendment giving the US President the power to tax by executive fiat, Trump is acting unconstitutionally.
If Congress doesn’t want to enact legislation on tariffs during this congressional session, they do not have to just because our President is acting like Juan Peron.
All true but with the proviso that Congress did delegate “emergency” tariff power. Who gets to decide what qualifies as an “emergency”? It is a stretch but Trump can point to some unambiguous SCOTUS rulings that courts do not have the authority to overrule POTUS’ determination as to who is an enemy, so does that mean by analogy that POTUS also gets to decide what is an “emergency”?
Congress does have the authority to make tariffs conditional on some outcome or circumstance as determined by the President if it is desirable to provide some negotiating ammo.
The other issue is standing. Can anybody sue on the grounds that the emergency statute does not apply?
But I think we agree that Congress should be expressly reclaiming its turf. But they won’t until poll numbers tell them what to do, and even then partisan paralysis may prevail.
State legislatures have done essentially the same thing with respect to the certification of electors for the President by discontinuing making the certification directly and turning into a state popular vote. Now many people think we have something called a “federal election” when no such thing exist.
If Congress passed legislation giving the President the power to enact taxes, including tariffs, this legislation would not be consistent with Article 1, Section 8 of the US Constitution.
Imagine if the President said that income inequality is an emergency and therefore the President, without asking Congress, decide to enact higher income taxes on everyone who makes more than 125% of the median income.
The President might find legislation that supposedly allows the President to do this, but it seems likely the federal courts would rule that, absent an amendment to the US Constitution giving the President this power, the President has no such power.
I think we are in a similar situation with these tariffs, especially since they appear to be in force one day and not in force the next day, depending on how Trump reacts to the latest bond market turbulence.
Anybody who has to pay the tariff has suffered an actual harm and should have standing to sue on the grounds that the tariff was implemented through illegal means.
We are almost 3 months into the 2nd Trump administration and Trump is still fiddling with his tariff policy, raising them on countries one day and withdrawing them the next, putting tariffs in place only to put them on pause for 90 days.
Trump should first decide what the tariff rate should be for each country and each category of product to be imported and then second should submit his ideas to Congress. Congress can decide to pass on any new tariff policy, or they can decide to legislate. Acting within Constitutional bounds might be boring for Trump, but that’s what he ought to do as the executive of a Constitutional Republic.
Someone needs to tell Trump to quit acting like an Argentinian leader and act more like an American leader or else our financial markets will start to look more Argentinian and less American.
As for standing, any American importer of goods to the United States has standing to sue when US customs hits them with a huge bill at an American port of entry. They can argue that certain legislation passed by Congress unconstitutionally delegated legislative power to the executive or they can argue that the Trump administration is interpreting and applying the law incorrectly.
Yesterday, I listened to Niall Ferguson interviewed by Bari Weiss on The Free Press on Trump’s Tariffs. Ferguson said that Trump’s new tariffs increase taxes on the US economy by 2 percent of the US GDP. Now, that’s an enormous tax increase, one that should not become law since Congress has not approved it.