Tariffs and Tallies

In the United States, this was a banner week of off-year elections and Supreme Court oral arguments on the legality of many of Trump’s tariffs. While the court case won’t actually be decided for weeks or months, the transcripts of the oral arguments offer some glimpses into the pushback against the expansive use of emergency powers that has been the legal justification for most of the tariffs imposed by the Trump administration over the past months since April’s “Liberation Day.”

Both of these momentous events should put a smile on one’s face, whether or not you’re a Republican, Democrat, Independent, undecided, disaffected, disillusioned, disenchanted. The elections should be seen as a positive not because Democrats did much better than expected in every state where there were elections (which they did). They should be seen as a positive because turnout was absolutely gangbusters.

One of the unexpected positives of the Trump years since 2016— and indeed even more of the Second Season of the Trump Show— is that American democracy and its voters have been energized to a degree not seen since the mid-20^th century. For decades, voter turnout steadily decreased, as more people opted out of the political system in bouts of either disaffected apathy or self-satisfied passivity. People either were vaguely content with the system or despairing that voting made any difference between the Tweedledee and Tweedledum parties. Voter turnout bounced around 50% for presidential elections and 40% for midterm elections after the 1960s. In the last three cycles, turnout has surged an additional 10-15%. And this year, in an off-year no less, turnout in New Jersey, Virginia, and New York was nothing short of a tsunami of voter enthusiasm compared with years past.

In New York, where, as everyone knows, a 34-year-old Zohran Mamdani won the election as a Democratic-Socialist, turnout was higher than at any point in the past 50-plus years. The last mayor to win as many votes as Mamdani was John Lindsay in 1969. Turnout was so high in fact that the second-place finisher, Andrew Cuomo, who received more than 850,000 votes, would have won every mayoral election since 1997 with that total. In Virginia, 3.3 million people turned out to vote, which was the most ever in a non-presidential election year in that state. In New Jersey, turnout was the highest in at least 20 years. In California, 10 million people came out to vote on one proposition.

This continues a powerful trend of voter engagement in the political process. If democracy rests on the principle of citizens voting for the local, state and national government officials, then this trend demonstrates a powerful commitment to and participation in democracy that is intensifying after years of waning.

In a similar vein, look at the questions posed by the Supreme Court justices to the lawyers representing both the administration and the plaintiffs in the suits challenging Trump’s use of emergency statutes from 1977 to justify a sweeping use of tariff power. These questions suggest that the court, contrary to interpretations of its rulings on the shadow docket allowing the administration to extend control over the executive branch pending litigation and cases yet to be decided, is quite attuned to the problem of overweening executive power.

That argument was expressed most powerfully not by the liberal trio of justices (Sotomayor, Jackson, and Kagan) but by one of Trump’s first term appointees, Neil Gorsuch. In challenging the legitimacy of using the 1977 International Emergency Economic Powers Act to enact sweeping tariffs, Gorsuch first invoked the “major questions” doctrine that he himself has helped formulate (the idea that on issues of “vast economic and political significance,” Congress must clearly specify what powers it is delegating; the executive branch cannot just assume whatever powers it can infer). But more tellingly, he suggested that, constitutionally, Congress cannot delegate taxation powers even if it wishes to. That harkens back to a time when the court routinely, and controversially, invalidated congressional laws on constitutional grounds, most notably during the New Deal era of the 1930s. Gorsuch’s broader point was that the Constitution does not permit Congress to grant the president unlimited power.

The court may end up narrowly ruling in favor of the tariffs, but judging from this week’s arguments, that outcome appears unlikely. More importantly, Gorsuch’s reasoning should keep in check the tendency to assume that the court is enabling Trump per se. The conservative court has a theory of the case that the administrative state has gotten too powerful and the elected president ought to be able to control the executive branch rather than officials appointed and not answerable to the president. That is a debatable theory but a legitimate one in that one can read the Constitution as allowing for greater executive control and not explicitly allowing for a parallel administrative state out of reach of the president.

The shadow docket rulings that have largely favored Trump are for the most part deferential to presidential authority in the interim: meaning that the rulings allowing various moves are not permanent rulings in favor but rather allow the president to do questionable things until the cases make their way through the courts. Yes, there is a strong argument that by the time courts can rule, the damage will have been done, hence the argument for injunctions. But this court has chosen instead to defer in the short-term to executive action pending a fuller legal assessment.

But the court is not simply an enabler here. It is clearly grappling with the limits of presidential power and doing so at a much slower pace than the kinetic frenzy of the administration. Even so, its decisions over the next year may radically alter the warp and woof of what a president can do and what the president cannot. If Gorsuch proves a lodestar, and he well might, it will be an executive with far more power over the executive branch and far less power than Trump (or for that matter Biden or Obama or Bush in their terms) aspires to wield.

So, in all respects, it was a good week for American democracy and civic and legal engagement. You wouldn’t know that in the partisan heated fray of public discourse, but don’t let the noise drown out the facts.