How the Supreme Court helped Trump wreck the economy

Greg Sargent has a good interview with Norm Ornstein, who both remind us that Trump only has the power to create an instant recession because it was delegated by Congress:

Sargent: The core thing that happened here is that to do this, Trump had to declare a national emergency and then invoke the International Emergency Economic Powers Act, which supposedly allows him to unilaterally impose tariffs. The national emergency he declared is that we’re suffering from trade deficits. This has never been done by a president until this year. And there’s just no plausible way to say that trade deficits, which aren’t necessarily bad, constitute a national emergency. Is there?

Ornstein: This defies logic entirely. And the reality is that we’ve had a very robust economy for a lot of years now, defying a lot of predictions about it. In the aftermath of Covid, it came back very, very strongly. To say that we are in the middle of an economic emergency is ridiculous, except that he’s now going to trigger an economic emergency with this. And a few things flow from it. (1) is how far off base can he be in simply declaring something that is blatantly false and still get away with it? And (2) is what are the means to be able to block this from causing the damage we know will follow if we don’t do something about it?

I’ll leave this for another post, but note that the Supreme Court certainly could hold that trade deficits are not a national emergency — a bigger tariff increase than Smoot-Hawley creating an economic shock comparable to a once-in-a-century pandemic seems like a pretty, ah, Major Question to me! — although alas the partisan identity of the president makes this unlikely. Back to our story:

Sargent: Well, there are some things that can happen, and I’d like to bring those up. There are a couple things underway in Congress right now. I think we can expect Democratic senators to push something in the next day or so that would effectively cancel the national emergency that Trump used to impose the tariffs. That would end them. You’d need a few GOP senators to support this, but a few already supported a narrower anti-tariff measure that just passed the other day. Then after that, you’d need a discharge petition in the House moving the same thing, canceling the national emergency. You need a handful of Republicans in the House to support that, which is not impossible. It’s implausible, but not impossible. Norm, could you walk us through the details of how that would work?

Ornstein: Let me note as well the election results on Tuesday of two House seats in overwhelmingly Republican districts in Florida that Trump and the predecessors had won by 30 points or more. While Republicans won, the margin was cut in half in both instances to 15 percent or less. I mention that because that had to leave every House Republican who won by 15 percent or less quite nervous last night. They see the direction that things are going. So you’ve got pressure points with some of these Republicans.

Now, what happens is this. As you indicated, we’ve already seen a Senate resolution that passed with four Republican votes that countermands the 25 percent tariffs on Canada that Trump had already imposed, before these across-the-board huge ones that he announced just yesterday and today. That has to go through the House. Speaker Mike Johnson has already indicated he will not bring it up, so the venue to use is a discharge petition. This is a rule in the House that goes back well over a century, and was a way to get around an all-powerful speaker who could block anything from taking place. It says, under limited circumstances, a majority of the House—218 members in this case—signing a petition can force a bill to come to the floor and get an up-or-down vote. A resolution by House and Senate passing into law can countermand Donald Trump.

If Democrats are going to have any savvy at all in this case, they should not only bring up the resolution that passed the Senate to block the 25 percent tariffs on Canada. They should also introduce a broader one to block all of these outrageous tariffs and save the economy—and get Republicans on the record about whether they’re for it or against it.

There’s another issue here, which is that even if you could somehow cobble together a majority to remove the authority Trump is abusing, you would need a large enough supermajority in both houses to override a veto, which would be impossible:

Sargent: Well, I want to be clear that even if this did get through the Senate and House by the strategy we’re talking about here, if Trump vetoes it then you need two-thirds of each chamber to override that veto, correct?

Ornstein: Correct. And that’s not likely to happen, except that if Trump is rejected in this fashion by a Republican House and Senate, even if it’s only a relative handful of each of them doing it, it is a powerful message. It is a message that would have an impact on him and other things that he tried to do unilaterally, including economic warfare.

Incidentally, it doesn’t have to be this way. When it wrote the NEA, Congress tempered its broad delegation with the ability to override particular executive actions without being subject to presentment. Unfortunately, a cross-ideological majority of the Supreme Court — in part because of a very well-chosen case — chose to upset this careful balance with disastrous consequences:

More precisely, the original version of the NEA allowed for a concurrent resolution to disapprove a presidential action. The post-Chadha version requires a joint resolution. The former does not require presentment to the president. The latter does.

[image or embed]— Josh Chafetz (@joshchafetz.bsky.social) April 2, 2025 at 8:29 PM

Burger make burger more exponsive!

White’s dissent in Chada was a prophetic warning about the consequences of eliminating the “legislative veto” that holds up better than ever:

The prominence of the legislative veto mechanism in our contemporary political system and its importance to Congress can hardly be overstated. It has become a central means by which Congress secures the accountability of executive and independent agencies. Without the legislative veto, Congress is faced with a Hobson’s choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or, in the alternative, to abdicate its lawmaking function to the Executive Branch and independent agencies. To choose the former leaves major national problems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role. Accordingly, over the past five decades, the legislative veto has been placed in nearly 200 statutes. The device is known in every field of governmental concern: reorganization, budgets, foreign affairs, war powers, and regulation of trade, safety, energy, the environment, and the economy.

[…]

The history of the legislative veto also makes clear that it has not been a sword with which Congress has struck out to aggrandize itself at the expense of the other branches — the concerns of Madison and Hamilton. Rather, the veto has been a means of defense, a reservation of ultimate authority necessary if Congress is to fulfill its designated role under Art. I as the Nation’s lawmaker. While the President has often objected to particular legislative vetoes, generally those left in the hands of congressional Committees, the Executive has more often agreed to legislative review as the price for a broad delegation of authority. To be sure, the President may have preferred unrestricted power, but that could be precisely why Congress thought it essential to retain a check on the exercise of delegated authority.