Why the president must not be lexicographer-in-chief

Mint

2 days ago

ON MAY 28TH a specialist American court for international trade struck down many of Donald Trump's tariffs. It did so on several legal grounds, including linguistic ones. As in so many cases, the two sides in the case presented different views on what several words mean. The next day another court temporarily stayed the decision. The tariffs remain in effect but the legal question remains.
Many of the tariffs rest on a law Congress passed in 1977, giving the president the authority to 'regulate" aspects of American trade 'to deal with any unusual and extraordinary threat". The first court found that 'regulate" did not include the power to impose tariffs. Tariffs are not mentioned anywhere in the relevant parts of the law. The Trump administration naturally disagreed. Under such a view 'regulate" would mean what the president says it does, a worrisome precedent.
The case will probably land with the Supreme Court. The high court, with its 6-3 conservative majority, has repeatedly held that the president must have almost unconstrained executive power to carry out his constitutional duties. But those duties do have constraints: taxation is squarely Congress's remit, not the president's, in the constitution. The 'emergency" law lays out specific conditions under which the president can temporarily wield the power to 'regulate". Even if regulation included taxation, the president has not passed other crucial tests.
Reconsider 'any unusual and extraordinary threat". The 'and" makes clear that both tests of 'unusual" and 'extraordinary" must be met. Are America's trade deficits either? They are not: America last ran a trade surplus in goods when Led Zeppelin were at the height of their powers, in 1973. The worst years for the trade balance, as a share of GDP, were in the middle of the George W. Bush administration, two decades ago; the deficit has shrunk as a share of the economy since.
Today's trade balance meets the definition of 'unusual" under no conceivable standard. If the Supreme Court decides that not only does 'regulate" (which could at least arguably include tariffs) mean what the administration argues, but 'unusual" does too, they would hand him extraordinary power (though they could strike the tariffs down for other reasons as well).
Mr Trump has already made another lexicographical power-grab. He has deported Venezuelans the administration accuses of being gang members to El Salvador under the Alien Enemies Act of 1798. This grants the power to eject people from the country without legal proceedings 'whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government". That 'whenever" clause forbids the arbitrary use of this power. So Mr Trump declared Tren de Aragua, a Venezuelan gang, to be a group directed by the Venezuelan government, and conducting an 'invasion". His intelligence agencies found otherwise—whereupon some of the top spies who had so concluded were sacked. Presumably Mr Trump will now promote some who will tell him an invasion is what he says it is.
Statutes are meant to be precisely drafted so that it is clear what they forbid, require and permit. But legislators are not linguists and they leave in mistakes and ambiguities all the time. This is why lawyers spend so much time arguing about the meaning of terms used in the laws.
As for the judges themselves, they have several ways of determining what a term means. You might think of 'the dictionary", but there are dozens of quality dictionaries, and judges can sometimes go dictionary-hopping to find the one that defines a term the way they want it to be for some other reason. Another problem is that dictionaries themselves are today nearly all descriptive, meaning that they try to portray how a word actually is used, not how the lexicographers think it should be. They use large archives of citations of real text to that end. So judges are ultimately getting the conclusions of bookworms at Merriam-Webster and Oxford University Press about how words are ordinarily used. This tricky descriptive task, carried out by fallible human beings, is not ideally suited to being such an important part of lawmaking.
Today, briefs submitted by amici curiae ('friends of the court": ie, outside parties) sometimes include research by linguists who can use their own big-data sources. For example they can use statistical techniques to see how frequently the word 'regulate" occurs in sentences also including 'tariffs". They have done so with a big body of founding-era texts to conclude that the phrase 'bear arms" occurred nearly always in a military context when the constitution was written, and therefore that the Second Amendment was about militia service, not personal self-defence. (The Supreme Court, before that research was done, held otherwise.) Such developments are a welcome improvement on dictionary-hopping.
Pinning down what a word means is far harder than most people realise. Dictionaries will never be perfect. Big data is better but will be subject to argumentation and interpretation. But the simple fact is that the arbiter of meaning cannot be the president, himself also a litigant in so many cases. If the Supreme Court's justices grant any president such authority, they would hand over not only Congress's power but much of their own, with dire consequences.