Round-up: Tariff whiplash. How far Musk has fallen. Judges' security. Trump's military parade.

Analysis of the week's events

Thanks for reading America Explained. If you’re not already a paid subscriber, please consider upgrading to support independent commentary. And if you have already upgraded, thanks for making this newsletter possible.

Tariff whiplash

A string of federal court rulings yesterday first paused Trump’s tariffs, then allowed them to go ahead again. Right now the tariffs are back on as their legality is considered by an appeals court, and after that the whole thing will likely end up at the Supreme Court.

The case - which was brought by a group of businesses and states - claims that by imposing the tariffs, Trump exceeded his legal authority under the International Emergency Economic Powers Act of 1977. And you know what? He probably did.

The IEEPA allows presidents to impose some emergency economic measures - like blocking transactions or freezing assets - in response to an extraordinary and unexpected security threat. So the Trump administration is basically arguing that the existence of global trade constitutes an extraordinary and unexpected security threat, which is pretty ludicrous.

There’s another problem as well - IEEPA doesn’t actually say anything about tariffs.

And that gets dicey because the constitution is crystal clear that it is Congress, not the president, which has the power to impose tariffs on foreign nations. Now sure, Congress can delegate tariff-making authority to the president under specific circumstances, and it has done so in other pieces of legislation. But those pieces of legislation were only supposed to be used under very specific and targeted circumstances.

They also require lengthy and cumbersome review processes before they’re allowed to be used. But, as always, this administration decided to take the lazy way out and not go through those processes. And as is so often the case, the lazy way out is also the illegal way out.

The reason this is illegal is because Congress’ constitutional control over tariffs doesn’t mean anyway if it can just delegate the whole thing to the president. All it can actually do is delegate some authority under some circumstances - not give the president the right to impose tariffs on any group of penguins he fancies at any time.

Alas, none of this means that the legal battle is going to end the way we might wish. Courts have typically been very deferential to presidential declarations of emergency even when they clearly exceed the circumstances under which emergency powers were intended to be used. This Supreme Court, in particular, has a conservative majority which is very comfortable with expanding presidential power in general and Trump’s power in particular.

Another way forward would be for Congress to pass a resolution ending the so-called emergency. It has that power. But good luck getting this Republican-controlled Congress to do that. And even if it does, who is going to set tariff policy in the future? As I’ve written before, giving tariff power to Congress is no panacea either.

One thing that is for sure is that all of this whiplash is not good for the global economy. But this type of chaos is going to remain par for the course for so long as such unbridled power over the global economy is concentrated in the hands of one unstable individual. There’s a chance at least that the Supreme Court might step in and actually impose some sanity by placing limits on Trump’s power in this area. But don’t hold your breath.

How far Musk has fallen

A few quick notes about Elon Musk’s latest travails. Firstly, it seems he was furious to be cut out of a recent agreement between OpenAI and Abu Dhabi, and embarrassed himself in the process:

OpenAI led a group of American technology giants that won a deal last week to build one of the world’s largest artificial-intelligence data centers in Abu Dhabi. Behind the scenes, Elon Musk worked hard to try to derail the deal if it didn’t include his own AI startup, according to people familiar with the matter.

On a call with officials at G42, an AI firm controlled by the brother of the United Arab Emirates’ president, Musk had a warning for those assembled: Their plan had no chance of President Trump signing off on it unless his company xAI was included in the deal, according to some of the people.

Musk was never included - and Trump, you will recall, did actually sign off on it. Ouch.

Then there’s this story in The New York Times about Musk’s drug use, which apparently has been at a much higher level that was previously reported - although it has been widely suspected:

Mr. Musk’s drug consumption went well beyond occasional use. He told people he was taking so much ketamine, a powerful anesthetic, that it was affecting his bladder, a known effect of chronic use. He took Ecstasy and psychedelic mushrooms. And he traveled with a daily medication box that held about 20 pills, including ones with the markings of the stimulant Adderall, according to a photo of the box and people who have seen it.

This was the man who Trump put in charge of overhauling the federal government. He only hires the best.

Who guards the guardians?

Probably the main plotline of the Trump administration so far is the conflict between itself and the judiciary. The struggle is touching - or will touch - pretty much every aspect of the administration’s agenda, from trade to immigration to healthcare to Trump’s abuses of power.

As they keep losing in court, Trump administration spokespeople are escalating their attacks against judges to alarming levels. Trump’s top policy advisor Stephen Miller says that the country is in the grip of “judicial tyranny” and spokesperson Karoline Leavitt says judges have “brazenly abused” their power.

It’s important to remember that this is not true. Judges exist to make sure that the law and the constitution are observed. They are its guardians. And they’re clearly needed, because many of the things that this administration is trying to do - for instance ending birthright citizenship or using executive orders to destroy universities and law firms - are blatantly unconstitutional.

Be that as it may, the courts have a major problem in upholding the law against an administration that has truly gone off the rails - they don’t have any guns.

I’m serious. When you consider that the executive branch is a behemoth with millions of armed servants and that judges are mostly groups of people sat around in wigs and robes, you come to realize the problem here. Judges can make decisions, but a completely lawless administration could basically just ignore those decisions, and what are the judges going to do about it?

The judiciary is still facing another serious matter resulting from its “no guns” problem: violent threats against judges are escalating, and the only armed federal officers who exist to protect them against those threats do not answer to the judges themselves. They answer to the same Trump administration which calls those judges “the enemy within”.