President Donald Trump and his administration officials have been lobbing outrageous claims of economic ruin to essentially blackmail the U.S. Supreme Court into salvaging his beleaguered tariff regime, according to a legal analyst.
The president and his aides have resorted to what Politico senior writer Ankush Khardori called "The Chicken Little Defense," warning that striking down his tariffs as unconstitutional would "be a total disaster" that "would literally destroy the United States," while also making what he called a "transparently ridiculous" claims that the U.S. would take in $17 trillion from the tariffs and usher in "peace and unprecedented economic prosperity."
"This should all be seen for what it is — a tacit admission that the administration is on very weak footing as a legal matter," wrote Khardori, a former federal prosecutor. "The most charitable interpretation of the effort is that the administration is lobbying the Supreme Court to engage in the sort of outcome-driven judicial activism that conservatives have long claimed to hate. A less generous read of the situation is that this is an effort to politically blackmail the court into giving Trump what he wants even if it is clearly unlawful or unconstitutional."
The same strategy has been flopping in lower courts for months, and Khadori said the government's arguments haven't gotten any better, but he conceded that the immunity ruling that paved the way for Trump's re-election showed anything was possible with this Supreme Court.
"Ultimately there is no way to definitively predict how the conservatives will approach the tariff case," Khadori wrote. "Only two of them need to join the three Democratic appointees to rule against Trump, but that was true in the immunity case too."
The issue is rooted in basic constitutional principles over the separation of powers between the legislative and executive branches, because the Constitution gives Congress the authority to impose tariffs, although lawmakers have delegated some of that authority to the president through the International Emergency Economic Powers Act, which justifies economic sanctions but does not contain the word "tariff."
"This legal war-gaming around the tariff litigation is important for the obvious substantive reasons, but it can obscure two critical facts," Khadori wrote. "The first is that the Trump tariff policy may turn out to have been a political, legal and diplomatic debacle of historic proportions. The Trump administration has spent the last six months frustrating and antagonizing our allies with an endlessly changing policy that has thoroughly disrupted the global economic system, while also proposing to unilaterally and dramatically raise taxes on the American public without the input of their elected representatives."
The tariffs have been struck down over and over as unconstitutional, but Khadori said the president gave away the game by trying to ram the policy through the courts instead of getting Congress to pass them into law.
"If Trump is right — if his tariffs are necessary and wonderful and will stave off a Great Depression while also bringing an end to the Russia-Ukraine war — then he should go to Congress and get it to pass a law codifying them," Kadori wrote. "That would moot the whole legal challenge. The reason it will not happen, at least so far, is because the public is not buying the Trump administration’s claims, the tariffs are very unpopular and most GOP lawmakers have no interest in voting for them."
"Republicans on Capitol Hill have let Trump have his way pretty much all year," he wrote. "The fact that they will not bail him out here is telling. Will the Republican appointees on the Supreme Court do it instead?"