Donald Trump’s. This is the first time that American institutions have pulled hard on the leash of the occupant of the White House.
The American Constitution, in its article 1, section 8, establishes that it is up to the American Congress to decide on taxes and tariffs. In the words of James Madison, only Congress would have “access to the pockets of the people.”
To bypass Congress, Trump (International Emergency Economic Powers Act), an instrument created to deal with national security emergencies. The American trade deficit is not such an emergency, but Trump lied that it is.
The three judges defeated in Friday’s vote tried, in various ways, to justify the use of IEEPA by framing the tariffs as foreign policy gestures, an area for which the American president is constitutionally responsible.
But as the other six judges demonstrated, IEEPA does not authorize the establishment of tariffs, which are, of course, taxes. Tariffs don’t just hurt foreign economies: they are paid by American importers, whose pockets, as Madison noted, only Congress has access under the Constitution.
With characteristic poise, Trump called the Supreme Court justices who voted against him “puppy dogs” of the radical left and fake Republicans and said the justices acted under the influence of foreign interests. Said using other legal instruments.
Experts warn that these new instruments have more limited application than what Trump wanted to do with IEEPA. In other words, long legal battles must determine which tariffs will be valid. Not to mention the legal nightmare of knowing whether the money already raised from tariffs — hundreds of billions of dollars — should be. Trump, obviously, has already spent that money.
This confusion could greatly mess up the American economy. Furthermore, knowing that the Supreme Court is willing to stand up to the president, other institutional actors may lose their fear of doing so.
All of this could help the opposition in the mid-term legislative elections, which will take place at the end of this year. If Trump loses his majority in Congress, his authoritarian climb could fail.
If this happens, the pro-democracy action of the American Supreme Court will have been much more indirect, much more derived from its pro-economic liberalism action than in the case of the Brazilian STF during Bolsonaro’s coup. For example, to date, the American Supreme Court has not placed limits on the actions of the ICE militia. But he had already pulled Trump’s leash when he tried to illegally fire the president of the American Central Bank.
Both the STF and Scotus have their own histories, qualities, defects and even their cases of corruption: the code of ethics proposed by Fachin is inspired by a similar proposal that emerged in the United States after scandals involving judges Clarence Thomas and Samuel Alito (who voted in favor of Trump).
But no country waits for its institutions to become perfect before using them. Each democracy defends itself with what it has.
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