The Supreme Court’s decision in Learning Resources v. Trump was, in Chief Justice John Roberts’ telling, a straightforward example of statutory interpretation. Roberts framed the case as an interpretation of the 1977 International Emergency Economic Powers Act (IEEPA). In general, the Constitution grants Congress the power to tax. With IEEPA, Congress granted the President certain powers to regulate economic transactions during a national emergency. But the Act never mentions tariffs. As Roberts wrote, “Based on two words separated by 16 others in Section 1702(a)(1)(B) of IEEPA — ‘regulate’ and ‘importation’ — the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time. Those words cannot bear such weight.”
Justice Neil Gorsuch, in his concurring opinion, tells a different story to explain why IEEPA does not authorize the President to wield unlimited power to set and rescind tariffs. Gorsuch acknowledges, in a way Roberts does not, that it might be possible to read the statute broadly to confer the delegation of powers the President claims — especially because the Constitution’s grant to Congress of the power to tax exists in tension with its grant to the President broad powers in the conduct of foreign affairs. The core of Gorsuch’s opinion comes in his final paragraph, a paean to both the separation of powers and the importance of the legislative branch and the power of deliberation.
Gorsuch speaks directly to those who, like the President, will criticize him and the Court for their decision. “For those who think it important for the Nation to impose more tariffs,” he writes, “I understand that today’s decision will be disappointing.” The President’s childish and dangerous personal attacks on Gorsuch and Justice Amy Coney Barrett proved Gorsuch right. He continued:
All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason. Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man.
The beauty of legislation — for all its ugliness — is that it is based in deliberation. Deliberation, Gorsuch writes, “tempers impulse.” When various factions in Congress must agree on legislation, “compromise hammers disagreements into workable solutions.” No faction gets what it wants; all must compromise. And this, he continues, is a good thing. Because legislating is hard and slow, laws that are finally passed “ tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day.” The dignity of legislation, then, is not that it leads to good laws or even the best laws. It is that legislation is slow. It is deliberate rather than rash. Such slowness is a virtue. It means that we live in a world regulated by stable laws rather than the mercurial dictates of a tyrant.
Gorsuch concludes his defense of the legislative process over and against presidential fiat with the grand claim that legislative process is the bulwark of liberty:
In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.
When Gorsuch celebrates “the deliberative nature of the legislative process” and argues that it “was the whole point of its design,” he is not merely defending Congress in its battle with executive impatience. He is echoing one of the United States Constitution’s central insights: that political speed is dangerous. The Framers did not design a government that acts quickly. Their goal was not efficiency, but liberty. Thus, they designed the Constitution with serious structural impediments, a government in which slowness, deliberation, and checks on power serve the fundamental principle of moderation that is the root of political freedom.
Ours is a constitutional order structured to slow power down. It does not do so simply by limiting power. Laws–and even constitutions–limiting power will be paper tigers, shredded by factions and individuals who would exercise power. As Montesquieu first understood, and John Adams emphasized, “only power can check power.”
That is why James Madison praised in the Constitution what he called in Federalist No. 51 the “double security” of both the separation of powers and federalism. The two houses of the legislative branch represent different factions — the House of Representatives the people, and the Senate (originally appointed by state legislatures) the states in their differences. The President can be a check on the Legislature, and vice versa. The Court is a check on both the executive and the legislature. And when the separation of power itself fails, the states– individually or collectively–can check federal power, just as federal power can check the dangerous liberty of states.
Tariffs do not fall evenly across the nation. Manufacturing-heavy states may favor protection; consumer and port states may resist it. When tariff policy must pass through Congress — through representatives of those divergent economies — it reflects negotiation among states with competing interests. When it is imposed unilaterally, that federalist balance is bypassed. That is why Madison celebrates the double security of both separation of powers and the multiplication of powers in our federalist system. These multiple and competing powers are not accidental complications. They are deliberate impediments. They reflect a sober judgment that liberty, left unchecked, can turn quickly into tyranny.
It was Madison who saw this most clearly. In Federalist No. 10, he warned that liberty itself feeds faction. “Liberty,” he wrote, “is to faction what air is to fire, an aliment without which it instantly expires.” The solution was not to extinguish liberty — an impossible and tyrannical cure — but to structure it. Factions could not be prevented. They could only be filtered, slowed, and forced into compromise.
Hannah Arendt saw clearly that the Constitution’s genius lies not in its promise of unity, but in its refusal of sovereignty. In On Revolution, she called the “consistent abolition of sovereignty” the greatest American innovation in politics. No person, no institution, not even “the people,” was made absolute. Power was divided, multiplied, and set against itself.
This was not idealism. It was realism. Madison assumed that men are not angels. Arendt assumed that power, wherever it concentrates, tends toward domination. The American answer to that danger was not faith in virtue, nor reliance on a single heroic branch of government. It was also not faith in a written constitution to limit power. Rather, it was the layering of auxiliary precautions — separation of powers, federalism, competing sovereignties — and, when necessary, the organized dissent of citizens themselves. Federalism is not a technical arrangement between jurisdictions. It is a refusal to allow any single locus of authority to claim final say.
When power claims the authority to act alone in the name of necessity, sovereignty reappears. And sovereignty, once reintroduced, corrodes constitutional design.
By the late 1960s, Arendt worried that even the “double security” Madison had celebrated was proving insufficient to preserve liberty in the face of the general disempowerment of the American people. She saw that the Supreme Court could not reliably restrain the growth of executive and bureaucratic power. And she understood that Congress was failing to jealously guard its powers as a meaningful check on presidential encroachment.
In her essay “Civil Disobedience,” Arendt offered a shockingly original solution for what she saw as the failing institutional safeguards of constitutional liberty. Civil disobedience, she argued, when properly understood, should be seen as a political and institutional emergency action for “when the established institutions of a country fail to function properly.” As the continuation of the American tradition of voluntary associations, civil disobedience is, for Arendt, “the specifically American remedy for the failure of institutions, the unreliability of men, and the uncertain nature of the future.”
Civil disobedience, in Arendt’s sense, is not anarchy; it is the organized action of minorities who seek to restore public deliberation when institutions fall silent. It reintroduces plurality into a system drifting toward command. It does not claim infallibility. It claims visibility. It says: we are organized, we are numerous, and we demand to be heard within the constitutional order.
What civil disobedience tests is whether political authority remains accountable to plurality rather than collapsing into command. It is not a sermon against power. It is a political reminder that no branch, no official, and no electoral majority is sovereign. It seeks not to replace authority, but to recall it to its constitutional limits.
Civil disobedience does not replace legislative deliberation; it seeks to restore the conditions under which deliberation can function. In a way that Justice Gorsuch might find compelling, it is the reactivation of that same principle of slowness, deliberation, and forcing power back through a public process. Arendt’s provocation was not about motivation. It was about authority. When executive power claims the right to decide alone, it is not merely acting efficiently; it is reintroducing sovereignty into a constitutional order designed to disperse it.
If today the auxiliary precautions that slow the exercise of majoritarian liberty seem dormant, the answer is not resignation but action. The Constitution does not enforce itself. Its structures come alive only when states, courts, and citizens are willing to use them. When power accelerates in the name of necessity, constitutional freedom depends on our willingness to slow it down.
