https://newleftreview.org/sidecar/posts/notifications
Corey Robin
11 April 2025 Politics

Tariff, Donald Trump has said, ‘is the most beautiful word in the dictionary’. He won’t be pleased to learn that it comes from Arabic. Ta‘rīf is a notification; ‘arrafa means to make known. Despite his many notifications, Trump hasn’t really made known why he’s imposing the tariffs – or why, as of Wednesday, he has put a pause on them. Trumpologists believe they know. Trump hates the rules-based international order. He loves the masculinity of manufacturing. He hopes to trade access to American markets for devaluations of the dollar. He needs revenue to pay for his tax cuts. He wants better deals and lower trade deficits. Cruelty is the point. With Trump, anything is possible, so everything is plausible. What’s undeniable is that he has tapped a vein, long thought buried, that can still explode with a force like no other.

Tariffs occupy an outsized place in the American imagination. The first proposal entertained by Congress was a tariff. The slaveholding South first pondered secession, in 1832, over a tariff. After the Civil War, Republicans declared the tariff ‘the foundationstone’ of their crusade against the Democrats. In 1896, William McKinley ran on the slogan ‘Protection and Prosperity’. In 1930, Herbert Hoover destroyed whatever chance he had at reelection for the sake of the tariff. Teddy Roosevelt caught the crazed drift of the country when he declared that, in any discussion of the tariff, ‘I am not meeting a material need but a mental attitude.’

The tariff is a proxy for other people’s poison. Fatally dependent upon exporting agricultural commodities to a global market, the southern slaveholders saw the tariff as ‘an exterminating war’ upon their property and way of life. During the Gilded Age, the political scientist Richard Bensel has written, the tariff was a tool of political cohesion for the Republicans rather than a policy for industrial development. Republican elites were economically committed to the Gold Standard and an unregulated internal market. Both policies redistributed wealth upward – socially and geographically. Neither was popular among legislators who had to win votes outside the urban centres of the Northeast and manufacturing centres of the Upper Midwest. The tariff, particularly on sugar and sheep, bought Republicans those votes: farmers, ranchers and manufacturers in the West liked the tariffs on wool; Union veterans, who lived mostly in rural areas, liked the Civil War pensions funded by the tariffs on sugar.

Before the New Deal, the tariff organized conflict between the two parties. Then, it disappeared. After losing multiple elections to FDR, Republicans lost their tariff fever. Every president, Democrat or Republican, was now a free trader. Though protectionism could elicit the occasional complaint from a congressman or campaign, the tariff question had become, in the words of the political scientist David Mayhew, ‘the writhing limb[] of a dismembered reptile’. So it remained – even as American unions, battered by imports, turned against free trade in the 1970s, taking with them their congressional allies in the Democratic Party. The rank-and-file of the two parties reversed positions on protectionism: Democrats were for it, Republicans against it. Occasionally, they could engineer a fight over it, as congressional Democrats did over NAFTA in the early 1990s. But, whether because of the Cold War or the fact that the United States had replaced Britain as the global hegemon and steward of monetary stability, party elites and presidents remained committed to free trade. Until now.

Trump and the Trumpologists often compare him to McKinley. But where McKinley used the tariff to unite the masses and the classes, Trump’s tariffs – and the markets they’re roiling – threaten to drive a wedge through his coalition, separating his MAGA supporters from the swing voters of colour and GOP elites who helped put him into power a second time. Wall Street and CEOs don’t like the tariffs. Neither does Walmart or Elon Musk. Republican politicians, including Texas Senator Ted Cruz, have begun to criticize them. Seven Republican senators are cosponsoring legislation to limit his power to impose tariffs. As many as a dozen Republicans in the House might join them.

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In America, the political scientist Louis Hartz unhappily noted, law flourishes ‘on the corpse’ of political imagination. Every social antagonism gets fed into the maw of the Constitution or the courts. That means, however, that every text of law and the courts contains a spark of social friction, ready to set the political field on fire. The trick is to find it.

Last Thursday, the day after ‘Liberation Day’, a stationery company in Florida, owned and led by a group of women with a penchant for floral design and sourcing from China, filed a suit against Trump’s tariffs. Taking aim at the statutory basis of the China tariffs, which Trump imposed in February and March (and has massively increased since, with no sign of pause or reprieve), Emily Ley Paper claims that Trump exceeded his authority under the International Emergency Economic Powers Act of 1977. Though Trump claims to be responding to a ‘national emergency’ – the ‘extraordinary threat posed by illegal aliens and drugs, including deadly fentanyl’ – no president has ever used the 1977 Act to levy tariffs for the simple reason that the Act makes no mention of them. Trump has other sources of statutory authority to impose tariffs, which he invoked during his first term. But they require the president to follow an un-Trumpy process of deliberation and design. None of them grants Trump the emergency powers he so loves to wield.

Standing behind Emily Ley Paper is a little-known nonprofit called the New Civil Liberties Alliance. Boutique litigators in the conservative ecosystem, the NCLA has quietly taken the lead in deconstructing the ‘administrative state’. Last year, the NCLA persuaded the Supreme Court to overturn its longstanding Chevron precedent, which granted executive agencies wide latitude to interpret ambiguous laws and limited the power of judges to overturn those interpretations. The Court ruled that not only could lower courts decide for themselves what Congress meant in any of the vaguely worded statutes it often passes but they could also overturn the expert judgement of civil servants tasked with executing those statutes. From now on, it would be conservative judges rather than liberal technocrats who steered the administrative state.

Standing behind the NCLA, in turn, is the billionaire Charles Koch and Leonard Leo, arguably the most influential power broker on the legal right since the days of Edwin Meese. Leo is the principia mechanica of Trump’s judiciary, not just on the Supreme Court but across the federal bench. Through his network of donors, lawyers, judges and law professors, Leo spearheaded the appointment of five out of nine of the current Supreme Court justices – ranging from the hard-right Samuel Alito to the slightly less hard-right John Roberts, and including all three of the justices appointed by Trump – and more than 200 federal judges during Trump’s first term.

A powerful sector of the right, in other words, is speaking through Emily Ley Paper. What is it saying? It will field the same army against Trump and his tariff Republicans that it mounted against liberals and their administrative state. Already in this lawsuit, the legal right is using the same weapons – the major questions doctrine, the nondelegation doctrine – that it and other conservative groups turned on the Environmental Protection Agency and Joe Biden’s student loan forgiveness program. If Congress is to allow the president to make ‘decisions of vast “economic and political significance”’ – such as imposing tariffs – it must first ‘speak clearly’. Not only has Congress not spoken clearly in this instance; it hasn’t spoken at all. Any act, moreover, that delegates the constitutionally stipulated powers of Congress, including the power to impose tariffs, to the president, without guidelines or restraints, is unconstitutional. The courts Leo has staffed for two decades can rule against Trump in one of two ways: he’s acting illegally or he’s acting unconstitutionally. If the case should get to the Supreme Court, conservative lawyers, including those close to Trump, predict that he’ll lose. The only question is by how much.

At the height of the Gilded Age, one party of capital loved to mock the other party of capital as addled conspiracists, tracing every political and economic ill in America back to protectionism. ‘Every road leads to the tariff with him’, said Ohio Republican John Sherman of Kentucky Democrat James Beck. Today, in our new Gilded Age, the tariff question – and the mockery of it – has returned to the highest levels of politics. Only this time, it’s Democrats poking and prodding Republicans, who, instead of using the tariff to consolidate their coalition, are allowing the tariff to blow it apart. What that means about the relationship today between party politics and political economy, and the questions of monetary policy and American power that lurk behind it, is anyone’s guess.