The Perils of Personalism: Thoughts on ‘Liberation Day’ – The American Spectator | USA News and PoliticsThe American Spectator

The 85 essays that comprise The Federalist Papers are in great measure concerned with the principle of the separation of powers — that “the legislative, executive and judiciary departments ought to be separate and distinct,” since the “accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny” (Federalist No. 47). In the 75th installment of the series, published in the semi-weekly newspaper The Independent Journal on March 26, 1788, and written by Alexander Hamilton under the pseudonym Publius, we find instead a defense of the “intermixture of powers.” Entitled “The Treaty-Making Power of the Executive,” Federalist No. 75 considers the proposition that the president should have the power “by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur,” which some critics of the Constitution considered an infringement of presidential prerogatives.

Hamilton maintained that “the union of the Executive with the Senate, in the article of treaties, is no infringement of that rule” of separation of powers. The power of making treaties, according to the future secretary of the treasury, was a “distinct department” belonging exclusively neither to the executive nor the legislative branch. While the executive was admittedly “the most fit agent in those transactions,” nevertheless, “the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.” After all, “the history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.” The history of human conduct since 1788, it is safe to say, has only buttressed Hamilton’s reasoning and conclusion.

In the late 18th century, diplomatic and commercial treaties represented the ligaments of international relations, the connective tissue that bound states to one another for mutual defense and profit, and Hamilton assumed that the Senate’s role in treaty ratification would henceforth ensure that the executive branch could not conduct its “intercourse with the rest of the world” without regard to the elected representatives of the people. What he did not foresee was that, over time, treaties would become less and less central to our foreign policy. David Armitage, writing in Ricerche di Storia Politica, has noted that “one of the defining features of our contemporary moment seems to be a retreat from treaties across the globe,” with the “most conspicuous evidence of this com[ing] from the United States.” The result has been a proliferation of non-binding agreements between nations, whether in the form of joint communiques, memoranda of understanding, or more formal bilateral or multilateral non-binding international agreements, which have the advantage of avoiding pesky congressional oversight.

The Obama administration’s Iran deal and Paris Agreement emissions pledges, the Biden administration’s agreement with the Taliban on the withdrawal of American forces from Afghanistan, the first Trump administration’s Artemis Accords and asylum cooperation agreements signed with Honduras, Guatemala, and El Salvador, to name only a few examples of executive non-binding agreements, may differ greatly from each other, but have one thing in common — they served to bypass the Senate. And now we see perhaps the culmination of this trend with the much-debated Ukraine mineral deal/extortion scheme, which in another era would have taken the shape of a bilateral treaty, but is presently conceived of as a limited partnership incorporated in Delaware, and “any disputes that arise out of or in connection with this Agreement or the Partnership shall be settled by the state courts of the State of New York or the United States District Court located in the District of the State of New York, in each case in the City of New York, for the purpose of any action between the parties arising in whole or in part under or in connection with this Agreement.” This is, apparently, the new normal in our “intercourse with the rest of the world.”

An even more notorious example of this phenomenon is to be found in the power of Congress to declare war under Article I, Section 8, Clause 11 of the U.S. Constitution, a power it has not bothered to exercise since early June 1942, when it formally declared war on Bulgaria, Hungary, and Romania. Since then, in the “era of collective security,” the war powers have been almost completely ceded to the president, a state of affairs that would have shocked James Madison, who in Federalist No. 41 discussed how

Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils. Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous, therefore, to enter into a proof of the affirmative. The existing Confederation establishes this power in the most ample form. Is the power of raising armies and equipping fleets necessary? This is involved in the foregoing power. It is involved in the power of self-defense. But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing fleets; and of maintaining both in PEACE, as well as in war? The answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place. The answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. With what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense? If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety.

The Founders could hardly have conceived of something so far-reaching as the Sept. 18, 2001, joint resolution on the Authorization for Use of Military Force, which to date has permitted the unilateral launch of counterterror operations in some 85 countries, and classified military campaigns in 22 countries, often with limited transparency or oversight. The exigencies of the moment prevail, meaning that we are supposedly, for the purposes of the Alien Enemies Act of 1798, at war with the Tren de Aragua gang (and other assorted Venezuelans with tattoos), while we are definitely not at war with, say, the Houthis of Ansar Allah, who we are currently bombing with hundreds of millions and soon to be billions of dollars’ worth of AGM-154 Joint Standoff Weapons, Tomahawk Land Attack Missiles, and other munitions as part of the ongoing Operation Rough Rider.

And then there are the Congressional tariff powers, again described in the Constitution’s Article I, Section 8: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises.” Straightforward enough, but as in the case of the treaty and war powers, the tariff powers have been steadily eroding, notwithstanding Chief Justice John Marshall’s ruling in Wayman v. Southard (1825) that Congress cannot delegate powers “that are strictly and exclusively legislative.” The Reciprocal Trade Agreements Act of 1934 gave President Franklin D. Roosevelt the authority to negotiate with foreign nations on mutual tariff reductions, which was considered a relatively low-risk proposition. Yet Roosevelt also exploited the Trading with the Enemy Act of 1917 to declare periods of national emergency, even though the country was not at war at the time, to pursue goals like limiting gold ownership, a precedent followed by President Richard Nixon, whose Proclamation 4074 declared a national emergency under the TWEA, and imposed a 10 percent supplemental duty on a range of imports. The International Emergency Economic Powers Act, passed on October 28, 1977, was meant to curtail emergency executive powers and provide more oversight, but as we have seen in recent years, the Trump administration has come to rely heavily on the IEEPA, using it to sanction International Criminal Court civil servants, temporarily ban WeChat and TikTok from app stores, and impose tariffs on Mexico, Canada, and then basically the entire planet, including some islands inhabited only by penguins, based on an alleged “unusual and extraordinary threat … to the national security, foreign policy, or economy of the United States.”

It was on Christmas Eve, 1824, amidst Henry Clay’s push to institute a protectionist American System through crippling tariffs, that Thomas Jefferson published his eloquent “Declaration and Protest of the Commonwealth of Virginia,” which attacked Clay’s program as fundamentally unconstitutional:

This assembly does further disavow, and declare to be most false and unfounded, the doctrine that the compact, in authorising it’s [sic] federal branch to lay and collect taxes duties, imposts and excises to pay the debts and provide for the common defence of general welfare of the US. has given them thereby a power to do whatever they may think, or pretend, would promote the general welfare, which construction would make that, of itself, a complete government, without limitation of powers; but that the plain sense and obvious meaning was that they might levy the taxes necessary to provide for the general welfare by the various acts of power therein specified and delegated to them, and by no others.

“A complete government, without limitation of powers” — Jefferson, in his considerable wisdom, had foreseen the inevitable accumulation of power by the executive branch in the absence of checks and balances and the relevant separation and intermixture of powers required by the Constitution, which has indeed resulted in government by “a pen and a phone,” as President Obama infamously called it, and an increasing reliance on executive orders circumventing congressional approval, if not always judicial scrutiny.

The term “complete government,” as opposed to the ideal of limited government, is rather redolent of “total government,” which is to say totalitarianism, with its dictatorial control of the public and private sphere, and the all-encompassing management of economic life. But it is also suggestive of the political system of personalismo, in which the public and private spheres are subjugated to a cult of personality, as was the case in the Argentine ideology of Peronism, with its culto a la personalidad de Peron, populist policies of protectionism and economic nationalism, implementation of a command economy, the fetishization of the working class coupled with antagonism towards the “national bourgeoisie,” and occasional lip service to Christian socialism.

There is a joke going around about how curious it is that Argentina is now governed by a free-trading libertarian, while America is governed by a Peronist. One does not have to agree entirely with that proposition to admit that there are elements of a sort of cult of personality forming around President Donald Trump, such is his hold on the Republican base, just as a cult of personality formed around Barack Obama during his political campaign and the early days of his administration. It is certainly unusual for politicians like Vice President JD Vance to talk about how “We can’t just ignore the president’s desires” when it comes to the Current Thing of seizing control of Greenland from our NATO ally, rhetoric that would be incomprehensible to Jefferson or the contributors to The Federalist Papers. But it is President Trump’s unilateral imposition of massive tariffs on the entire planet, in a bid to completely refashion the American economy and the global order of trade, that surely represents the high water mark of personalism (so far).

Perhaps you disagree with JD Vance circa 2017, who tweeted that it “Can’t be repeated enough: if you’re worried about America’s economic interest, focus more on automation/education than trade protectionism,” and instead you agree with JD Vance circa 2025, that an adherence to principals of free trade is just “braindead liberalism pretending to conservatism.” And thus, I guess, you might support a tariff policy that represents one of the largest peace-time tax increases in American history, regressive and distortionary in equal measure, one which appears to be the unholy brainchild of 1980s Democrats like Dick Gephardt and protectionist cranks like Lyndon LaRouche, and hailed by commentators like Batya Ungar-Sargon as the apotheosis of “Leftist MAGA” ideology.

Perhaps you agree with the Trump administration’s formula for calculating reciprocal tariffs, even if they are not actually based on tariffs but on trade deficits, a sleight of hand the economic historian Phil Magness has rightly described as an “innumerate reciprocity formula” that is ”the economic equivalent of bloodletting with leeches,” “akin to trying to calculate the moon landing with an astrology chart of horoscopes.”

Perhaps you think that the (highly exaggerated) threat of Canadian fentanyl, or the mere existence of trade deficits, warrants emergency action on the part of the executive branch.

Perhaps you pine for the days of the Navigation Acts, or the Tariff of Abominations (1828), or the Smoot–Hawley Tariff Act (1930), or you think that real tariffs, like real socialism, have never been tried before, and that the data from 151 countries and five decades showing “that tariffs have economically- and statistically-significant adverse effects on output growth,” with an impact that “is persistent and increases with the magnitude of the tariff change,” should be ignored.

Perhaps you are willing to pay the economic and electoral price for these tariffs, willing to wage a trade war against every other country on earth, willing to alienate allies or potential allies even as China’s influence waxes and our own influence wanes, and remain confident that we are nonetheless headed to “Boomtown.”

All that’s as may be, but you would still have to acknowledge that the Tariff of Abominations, and the Smoot–Hawley Tariff Act, and other similar gambits were all passed by Congress in the usual fashion, and not via emergency powers hallucinated by the executive branch. This is altogether in keeping with our country’s Constitution, which, as we have seen, “prudently chain[s] the discretion of its own government.” As Senator Rand Paul recently and quite bravely put it, “I don’t care if the president is a Republican or a Democrat, I don’t want to live under emergency rule,” given how preferable the rule of law is to emergency rule by capricious presidential decree.

Imposed without Congressional approval, the Trump Tariff of Abominations is of highly dubious legality, to say the least. Using the IEEPA to impose sanctions is a novelty in and of itself, given that neither the words “tariff” nor “duty” appear in the legislation (sanctions and asset freezes are a different matter). The U.S. Supreme Court’s articulation of the major questions doctrine, in West Virginia v. EPA (2022) and elsewhere, requires a clear congressional authorization for the administrative exercise of “sweeping and consequential authority,” on the grounds that Congress should not be presumed to act “in so cryptic a fashion” as to approve of extreme measures it never troubled itself to mention before. And even if the IEEPA was somehow interpreted to allow unbridled, arbitrary tariff power on the part of the president, an argument can be made that the legislation itself would then be unconstitutional under the non-delegation doctrine of Article I, Section I of the Constitution. If it is, for whatever reason, your desire to install a new American System predicated on mercantilist protectionism, even the most ardent free-trader will readily admit there is a way to do it, in a perfectly acceptable, constitutional manner, but it is through Congress and the legislative process.

There is nothing particularly conservative about this unprecedented expansion of the executive branch’s emergency powers, and yet pro-tariff figures like the Heritage Foundation’s Ryan Neuhaus are constantly warning that “There’s a group of individuals on the Right that claim to be conservative but continually refuse to acknowledge what time it is.” These phrases are seemingly everywhere these days — “you just don’t know what time it is,” and “you’re not a real conservative (if you don’t adopt the trade policies of 1980s Democrats).” Apparently, it’s time to ignore the Constitution and the Founding Fathers, ignore the benefits of free markets and the failures of command and control economies, ignore Adam Smith and Frédéric Bastiat and Milton Friedman and Thomas Sowell, ignore Churchill and Reagan, and ignore the wisdom of Henry George, who described so perfectly how

Protective tariffs are as much applications of force as are blockading squadrons, and their object is the same — to prevent trade. The difference between the two is that blockading squadrons are a means whereby nations seek to prevent their enemies from trading; protective tariffs are a means whereby nations attempt to prevent their own people from trading. What protection teaches us, is to do to ourselves in time of peace what enemies seek to do to us in time of war.

Is that really what time it is? In fact, it isn’t 1828, or 1890, or 1933. It isn’t the time for inflationary, regressive, distortionary measures. It isn’t time for conducting elaborate experiments in economic self-harm. It isn’t time to employ absolutely ludicrous reciprocity formulae with no basis whatsoever in economics, but with some Greek letters thrown in to make this commercial murder-suicide pact look scientific. It isn’t time to declare a trade war on, well, everybody, including allies like Japan, South Korea, and Taiwan, even as Chinese naval vessels are ominously circling the latter island like a school of ravenous steel sharks. And it isn’t time to shred the constitution, embrace personalismo, and throw away centuries of conservative tradition. Tariff fundamentalists might be disappointed, but the more people on the Right who are willing to say this, like the estimable Senator Rand Paul, the better.

There are signs that our legislators are waking from their decades-long reverie. The Senate has passed a bill (championed by Paul, though likely D.O.A. in the House) that would terminate the state of emergency vis-a-vis Canada which serves as the unconvincing pretext for imposing a raft of tariffs on our northern neighbor and (sadly erstwhile) ally, while other Republicans in the Senate, led by Senator Chuck Grassley, are working on legislation that would limit the presidential tariff power by requiring 48 hours’ notice and Congressional approval for new tariffs within 60 days. Yet the real “Liberation Day” will only come when Congress realizes that it cannot delegate away its exclusive constitutional responsibilities, for only then can we be assured that we do not live under a “complete government, without limitation of powers,” and that our republic is not at the “sole disposal of a magistrate,” regardless of his political party or tribe.

READ MORE from Matthew Omolesky:

Sur-realism: The Sheer Folly of the ‘Reverse Nixon Manoeuvre’

The Perils of Oppositional Politics

A Letter to a Young Realist