The children’s television star Fred Rogers once told his audience that when they saw frightening events in the news, they should look for the helpers: you will always, Mr. Rogers said, find people who are helping. I am past middle age, and it’s still good advice, but if I’m being honest, my heuristic now in the same situation is to look for the libertarians.
The emerging on-off-on-off trade war between Canada and the United States has everyone asking “How should we fight?” — understandably enough — but we should not move too quickly beyond the question “How is this literal nonsense at all possible?” How did the U.S. Congress’s clearly specified constitutional power to regulate the country’s commerce with foreign nations fall into naked and unapologetic decrepitude? Why is every new American president now a Napoleon, and why isn’t this at all a political issue in the U.S.?
The American Constitution, it seems, has no political party apart from a handful of cranky, tireless libertarians like Gene Healy, Clyde W. Crews or Ilya Somin, who has a new article spitballing possible litigation approaches for Americans who lie in the path of the tariffs now being wishcasted into existence by Napoleon the 47th. Somin explains that President Donald Trump is using an openly contrived “national emergency” to invoke powers delegated to the White House by Congress in 1977, powers that are to be invoked only in the face of “unusual and extraordinary threats” to the Republic.
Since the president apparently has plenary power to define an emergency, and to do so without offering anything resembling a rational explanation, this act of Congress now appears to be less of a delegation and more of a surrender — a total abandonment of constitutional principle and the classical separation of powers. I pause to observe that the cheeks every Canadian should redden with slight shame at the spectacle of frivolous recourse to the law of emergencies causing obvious and sickening injury to the rule of law in the U.S. (Oh, no, that could never happen here!)
I also observe the irony that the most potent practical bulwark against Trump’s contemptuous abuse of the Constitution may be found amongst the “right-wing” U.S. Supreme Court justices who are rightly finicky about the American constitutional text — some of whom Trump appointed to the court. The “left-wing” members of that court have done nothing but grease the wheels of American executive power since the time of Roosevelt. Most Canadians, I am sure, would identify with the left-wingers in a political poll taken tomorrow. But it’s the right-wingers who might stand in the way of “limitless executive discretion” over trade rules that, by their nature, ought not to be written on the wind.
The cause of the rule of law in the U.S. has become our problem very suddenly — as it has become a problem for Americans who depend on Canadian agricultural fertilizer and auto parts and natural gas. The libertarians and the legal originalists in the U.S. may not be capable of saving us, but we ought to very much regret not having seen them as true friends sooner.
National Post