New in City Journal: "Trump's Tariff Loss Is the Worst Judicial Defeat in Presidential History"

"From Jefferson to Lincoln, Nixon to Bush, no president’s agenda has been so thoroughly undercut by the Supreme Court."

Has any President ever lost such a significant case before the Supreme Court? I don't think so. That is the theme of my latest piece in City Journal, titled "Trump's Tariff Loss Is the Worst Judicial Defeat in Presidential History."

Here is the introduction:

How bad was President Trump's loss last week at the Supreme Court in the tariffs case? Really bad.

How does this defeat compare with other losses suffered by presidents at the Court? There is no sugarcoating it: the Roberts Court handed Trump the worst judicial defeat in presidential history.

There isn't even a close second. Not Richard Nixon's Watergate case. Not Franklin D. Roosevelt's New Deal setback. Not Harry S. Truman's attempt to seize steel mills. Not George W. Bush's War on Terror losses. None were in the same ballpark as the ruling in Learning Resources v. Trump. Even when those presidents lost, their own appointees generally ruled in their favor—in contrast to Trump, who saw two of his own nominees rule against him.

The results suggest that Trump will suffer many more defeats in the remainder of his second term—often through the votes of justices he selected.

And the conclusion:

All these defeats pale in comparison with the tariffs case. While Justice Kavanaugh argued that the president could use other powers to accomplish the same ends, time will tell whether a majority of the Court would reject these grounds, as well. In any case, the Learning Resources ruling has greatly diminished tariffs' utility as a bargaining chip, since negotiators on the other side of the table now have ample reason to believe that the courts will bail them out.

It remains to be seen whether the Supreme Court will continue to hobble President Trump for the remainder of his second term, but the tariff ruling suggests a rocky road ahead.

I think we are already seeing that Trump's efforts to use alternative statutory authorities will not work.

I am dreading what might come at the State of the Union tonight.

Comments

[M L]

"There may be good policy in retaliations of this kind, when there is a probability that they will procure the repeal of the high duties or prohibitions complained of. The recovery of a great foreign market will generally more than compensate the transitory inconveniency of paying dearer during a short time for some sorts of goods. To judge whether such retaliations are likely to produce such an effect, does not, perhaps, belong so much to the science of a legislator, whose deliberations ought to be governed by general principles, which are always the same, as to the skill of that insidious and crafty animal vulgarly called a statesman or politician, whose councils are directed by the momentary fluctuations of affairs."

Adam Smith

[Please, Daivd, Seek Help]

It feels like this is a question you primarily answer in hindsight at the end of a term when you've seen what, if any, additional agenda the president has or how successful they were. Biden was a one term president and arguably between his direct losses (student loans, EPA Clean Power Plan) and indirect losses (Bruen) I think it is actually safe to say he accomplished basically nothing as president that the court did not strike down, besides the Inflation Reduction Act, which mosly got gutted by the successive Congress. I don't agree with much of Trump's agenda, including tariffs, but I think it'd be crazy to suggest his agenda writ large is dead in the water because of this ruling.

[David Nieporent]

I know you used the caveat "indirect," but I don't see how Bruen was a loss for Biden. I mean, yes, I'm sure he'd have preferred it came out the other way, but it struck down a state law that was not a Biden initiative at all. (I agree with you on the two you call 'direct' losses. And I'd add Trump v. U.S. and Fischer.)

[bernard11]

In any case, the Learning Resources ruling has greatly diminished tariffs' utility as a bargaining chip,

"I'll burn down your store unless you give me what I want," is not usually considered "bargaining." More like extortion.

Nor is, "I'll shoot myself unless you give me $10."

[ah....Clem]

The other problem with "bargaining" is that if one side has a long record of failing to uphold their end of the bargain then nobody will bother negotiating with them since their promises are worthless.

Unfortunately, that reputation has spread from Trump to apply to the US as a whole. The damage will take decades to undo.

[LoganMankins]

This was a cathartic read because of how hard Blackman is coping that his favorite big beautiful president lost.

[ah....Clem]

Did you mean "copping" or "coping"?

[MollyGodiva]

"I am dreading what might come at the State of the Union tonight."

Really? We know what we will get.
(All the meaningless crap that we see in all SOTU speeches) x (Trump dumbass shit)^2 + (MAGA Bigotry) x (Trump dumbass shit) + (MAGA Idiocrocy)

[windycityattorney]

"Worst judicial defeat in Presidential history so far..." Fixed headline.

Give it time. Trump cares little for the rule of law and understands perhaps even less of the constitution.

It looks like he is already priming his base for a birthright citizenship loss. Going so far as to suggest the Court is doing that to benefit.... China.

When I think of MAGA's use of the term 'anchor baby', China is the first country that comes to mind?? Well no not really. But apparently to Trump it does. Fkn weirdo.

Hard to say in a contest of presidential policies/goals of this Trump admin whether tariffs or racism are more important. If the treasury starts sending tariff goons to shoot up blue cities and harass all its residents perhaps they would be on equal footing. But the racism seems to be more important at present.

[Area Man]

You know what? Blackman is right. I think this is so bad, that Trump should just resign. Hell, it's so bad that Vance should resign, too. Yeah, they should do that. There's no hope for their agenda now, so they should just throw in the towel. America doesn't deserve them anyway. And they don't deserve to be treated like this. The only way to keep their dignity is to just walk away. Forever.

[David Nieporent]

+1,000.

Although I'm not sure President Mike Johnson really gets us very far.

[LawTalkingGuy]

Oftentimes, a lawyer must recognize that even with the knowledge that a court has made erroneous or questionable decisions the end result was of the client’s own making by their own behavior prior to and during litigation.

[SRG2]

Josh must accidentally have omitted the paragraph where he says that the decision was correct and that Trump is responsible for the loss.

I'm reminded of one poster here, I forget whom, possibly BenFranklin, who wrote that the decision was legally correct but should nonetheless have been decided the other way.

[F.D. Wolf]

This is an overwrought reaction owing to the immediacy of the moment. The President has dozens of statutory authorities that give him explicit authority to raise tariffs, and this decision that this particular statute did not confer such authority, will have no bearing on any future legal challenges to any tariffs that may be imposed under those explicit delegations.

[Orbital Mechanic]

I would argue the exact opposite. The idiotic tariffs being struck down could be the biggest bailout of a presidential administration ever.

All year long every economic indicator was spelling out big trouble in the economy. Trump and the Republicans going to go into the midterms trying to argue that tariffs were working. Working I tell you! Who are you going to believe me or your lying eyes? We just need more tariffs!

With MAGA that isn't much of a question. But we are talking about the segment of the population that isn't in the cult and still have some electoral power.

Now that this decision is in place, Trump and the Republicans will argue that the economy is crap because SCOTUS and the Democrats screwed it all up. It was going fine until that happened so you will have to vote MORE Republican than ever so we can "fix" things. Only we can fix it.

Anyone want to argue that the MAGA base won't eat that up? Anyone want to bet this isn't going to be their argument going forward?

[Sam Bankman-Fried]

Correct, Trump inherited a strong economy and the focus should have been getting the Fed rate lower because the Fed rate is now a huge factor in the deficit. So Trump’s tariffs and LNG export permit approvals and immigration crackdown have all produced an economic climate in which the Fed couldn’t cut as quickly as it wanted to because inflationary pressures still exist.

Btw, Trump even supported the 39.6% top rate like Biden and Kamala and had he forced Republicans to increase the top rate then the deficit would have been significantly lower now. So Kamala would have already had the deficit ratio on track to be below 4% which is Bessent’s target and what Trump inherited in 2017.

[Doug Heffernan]

Every action involving trump is like "nobody has ever seen before". Even his losses. He said we'd all be tired of winning by now. Maybe this loss will allow him (and everybody else) to get some much needed rest.

[John 4]

"I am dreading what might come at the State of the Union tonight."

Crap, I wonder if Trump will say some insane, narcissistic stuff or something. You never know with that guy.