Ain’t no fiction like a legal fiction. Some of the world’s best fiction writers wear black robes to work.
Fun fact: Do you know how the federal government ended segregation in the south? After all, those “whites only, blacks only” laws were state laws. You might assume it was a high-minded legal dissertation on the equality of man, the nobility of the human spirit, and/or the moral obscenity of racism, but nah.
It was actually the commerce clause.
(Seriously. Not making it up.)
Since the federal government has the constitutional right to regulate interstate commerce, the Supreme Court ruled that a southern restaurant/hotel that barred blacks (or treated them differently) was potentially preventing out-of-state black businesspeople from having equal access to the city.
So they declared it unconstitutional.
Now, is it true that one 216-room Atlanta motel — in a city with many other hotels, motels, and overnight lodges — or one Alabama restaurant that let whites eat inside and served blacks via take-out could really, truly undermine interstate commerce so severely, the Supreme Court was constitutionally compelled to intervene?
Probably not: It was a legal fiction.
But because it achieved the preferred outcome, the justices went with it.
Which isn’t unusual. Our laws, after all, aren’t philosophical abstractions; the real-world consequences matter most of all. More often than not, when the chips are down, Supreme Court justices will move heaven and earth to reach their preferred outcome.
During the 1960s, that was ending segregation. The commerce clause was available, so they used it.
But other times, their motives are, ahem… less noble.
The Supreme Court justices may serve for life, but it’s still a political institution. The justices (and their spouses) live and work in D.C.; they’re not immune to political pressures.
And the OVERWHELMING majority of the time, their preferred outcome isn’t anything noble, like racial equality. It’s to avoid rocking the boat or suffering the political fallout.
They almost always decide cases in such a way to minimize their footprint, cede to the other two branches, and — most importantly — be as undisruptive as possible.
It’s why Chief Justice John Roberts creatively reclassified Obamacare’s individual mandate as a tax when President Barack Obama flatly said it wasn’t: That was the legal fiction that allowed the courts to keep Obamacare alive.
And wouldn’t you know it, the “what is a tax” question is in vogue once again, with the Supreme Court declaring that Trump’s emergency tariffs are unconstitutional.
[The International Emergency Economic Powers Act of 19977]’s use of the words “regulate” and “importation” are not enough to give Trump the power to impose tariffs, Roberts concluded. “The U.S. Code,” Roberts noted, “is replete with statutes granting the Executive the authority to ‘regulate’ someone or something. Yet the Government cannot identify any statute in which the power to regulate includes the power to tax.”
Indeed, Roberts added, interpreting the word “regulate” in IEEPA to include the power to tax “would render IEEPA partly unconstitutional,” because it gives the president the power to regulate importation or exportation, but the Constitution specifically bars taxes on exports.
Only this time, Roberts sided against the White House.
Very curious, because expanding the definition of taxes to include everything from traditional taxes to healthcare mandates to emergency tariffs seems less ideological and more perfunctory: It’s a means to an end, and nothing else.
Are fines taxes? Are fees taxes? Are dues taxes? Are regulations taxes? Is ANY government action that compels ANY financial expenditure a tax?
If so, it opens a big can of worms.
Maybe, government agencies — such as the EPA — that set environmental penalties are engaging in taxation without the consent of Congress! Unless Congress explicitly gave them permission, maybe EVERY federal museum that charges an entrance fee is illegally taxing Americans!
Who the hell knows anymore?
Either way, it’s a colossal mess. Some $175 billion in U.S. revenue is now subject to refunds. And ambitious, media-hungry Democrats are already moseying up to the trough.
Gov. JB Pritzker is demanding President Trump refund the state of Illinois more than $8 billion after the U.S. Supreme Court struck down his sweeping reciprocal tariffs Friday.
[…]
"On behalf of the people of Illinois, I demand a refund of $1,700 for every family in Illinois. There are 5,105,448 households in my state, bringing the total damages you owe to $8,679,261,600."
"This letter and the attached invoice stand as an official notice that compensation is owed to the people of Illinois, and if you do not comply, we will pursue further action."
Pritzker also released an invoice already marked "Past Due – Delinquent" and with a note, "Illinois families paid the price for illegal tariffs – at the grocery store, at the hardware store, and around the kitchen table. Tariffs are taxes and working families were the ones who aid them."
Cut the check, @realDonaldTrump. pic.twitter.com/NjVJ0tABme
— JB Pritzker (@JBPritzker) February 20, 2026
Hey, maybe the entire world could file a class action lawsuit against the United States of America, claim all kinds of punitive damages, costs, and expenses, and bankrupt our entire country!
Wouldn’t that be loads of fun?!
Don’t dismiss it: We’re already seeing headlines such as “Countries Line Up to Sue U.S. Over ‘Illegal’ Tariffs.”
(The Supreme Court, in its infinite wisdom, failed to offer any legal remedies; nor did it order the Trump administration to provide refunds. The issue remains unresolved.)
It’s a huge, thorny mess. And it’s a quickly becoming a PR problem for President Donald Trump.
From YouGov: Most Americans Approve of the Supreme Court Striking Down Trump’s Tariffs
Most Americans (60%) strongly or somewhat approve of the U.S. Supreme Court striking down many tariffs imposed by President Donald Trump, a new YouGov poll conducted hours after the decision finds.
Only 23% of Americans disapprove of the Supreme Court's decision. Almost all Democrats approve of it (88%), as do 63% of Independents. Republicans are more likely to disapprove than approve of the ruling, but a large minority (30%) of Republicans approve, compared to 47% of Republicans who disapprove.
[…]
Democrats are more likely than Republicans to say they've paid more because of tariffs, but even Republicans are four times more likely to say Trump's tariffs have increased prices than to say that they've decreased prices.
But the most noteworthy part of the YouGov article was the last sentence of the last paragraph:
The effect of the decision on approval of the Supreme Court could increase as more Americans hear about the decision. As of the poll, 21% had heard a lot about the decision, 43% a little, and 27% nothing at all. [emphasis added]
Ah, okay: Roughly 8 in 10 Americans have heard little or nothing about the Supreme Court’s ruling — and Donald Trump’s State of the Union address will be nationally televised on Tuesday, Feb. 24.
In Politico’s opinion (“A High-Stakes State of the Union Just Got Harder for Trump”), that’s a net negative:
The president’s primetime address to Congress on Tuesday was supposed to set the stage for a tough but disciplined midterm campaign focused on the administration’s efforts to lower costs for everyday Americans and tout his first-year accomplishments. Instead, he heads to the Hill amid a torrent of negative news.
[…]
And now, the nation’s highest court has dealt the president what some allies see as the most humiliating and devastating blow of his second term. Six justices, including two Trump appointees, said Friday that the president does not have the ability to unilaterally impose tariffs on trading partners in the event of an international economic emergency, a power that the court made clear resides with Congress.
“This is the signature economic policy, we’re four days away from the State of the Union, and he has just been rejected by the court in a pretty serious public way,” said Allison Smith, a lobbyist and former trade official in the Biden administration.
(Because, sure: Who better than Allison Smith, a lobbyist and ex-Biden official, to offer a fair and balanced analysis of Donald Trump?)
Either way, Politico is 100% wrong: The timing couldn’t be better!
This is President Trump’s opportunity to reset the narrative, redefine the stakes, and reintroduce his side of the story — and he can do so before the anti-Trump narrative takes hold. Had his State of the Union address not been scheduled for Tuesday, he would’ve had to manufacture an opportunity to speak to the nation ASAP.
After all, nearly 80% of the country has heard little or nothing about the Supreme Court’s decision. Trump needed to strike while the metal was hot.
When Trump talks about tariffs in the State of the Union:
- He shouldn’t make legal arguments. (Look, I graduated from law school — and my eyes glaze over at the legalese, too!) Unfortunately, it’s just too complex to succinctly explain in a presidential speech. Instead of persuading the audience, you’re more likely to lose them.
- He mustn’t unduly rake the Supreme Court over the coals. (The American people want a “check” on presidential power — and if Trump rails too hard against the court, it’ll play into the Dems' “Trump is a king/tyrant/fascist/‘literally Hitler’” canard.) Don’t pretend that it was the greatest injustice of all time — because it wasn’t. Take the “L” like a man and move on.
- Focus on the limitations of the Supreme Court ruling. (It didn’t say Trump couldn’t apply tariffs; nor did it demand refunds. It simply said that the emergency tariffs, under the IEEPA, were unconstitutional.)
But most of all, accentuate the core problems that tariffs were designed to fix:
- Stop foreign countries from exploiting the American marketplace and destroying key economic sectors;
- Bring manufacturing jobs (and other high-paying jobs) back to the heartland, so prices will be more affordable;
- Empower the president to negotiate favorable international concessions — i.e. Trump’s victory on fentanyl — that would otherwise be unachievable;
- Shift the financial burden off the backs of American citizens and onto the backs of foreign nations and foreign companies;
- Compel foreign markets to FINALLY open their marketplace to American sellers.
If President Trump presents this case in a reasonable, straightforward manner, he could use the Supreme Court setback as a narrative reset: Out of all the thousands of tariffs we’ve set, one kind was deemed unconstitutional. We disagree with the ruling, but respect the court’s decision. And because the American people deserve to live in a country with good-paying jobs, a strong manufacturing base, a vibrant economy, fentanyl-free streets, and reciprocal trading partners, we’ll focus on the thousands of tariffs that were found constitutional, learn from the ruling, and focus like a laser beam on growing the U.S. economy.
Don’t relitigate the Supreme Court’s decision. Sell the benefits of the tariff policy instead.
And if Trump plays it right, he could turn a losing hand into a winner. The president, after all, is an unusually gifted, generationally charismatic storyteller. This is tailormade for his skillset.
See, that’s always been the upside of writing fiction: Success is determined by how well your story connects with the audience — and nothing else.
One Last Thing: 2026 is a critical year for America First: It began with Mayor Mamdani declaring war on “rugged individualism” and will reach a crescendo with the midterm elections. Nothing less than the fate of the America First movement teeters in the balance.
Never before have the political battlelines been so clearly defined. Win or lose, 2026 will transform our country.
We need your help to succeed!
As a PJ Media VIP member, you’ll receive exclusive access to our behind-the-paywall content, commentating privileges, and an ad-free experience. VIP Gold gets you the same level of “insider access” across our entire family of sites (PJ Media, Townhall, RedState, twitchy, Hot Air, and Bearing Arms). That means: More stories, more videos, more content, more fun, more conservatism, more EVERYTHING!
And if you CLICK HERE and use the promo code FIGHT you’ll receive a Trumpian 60% discount!
Thank you for your consideration.
Join the conversation as a VIP Member