On Nov. 5, the Supreme Court will hear arguments in a case that may determine whether the Constitution’s separation of legislative, executive and judicial powers between the three branches of the government will survive or be replaced by an autocratic government in which all legislative and executive power is concentrated in the President.

The case involves the legality of President Trump’s tariffs imposed throughout the world by executive order. The Constitution provides that only Congress – not the President – has the power to impose tariffs.

Congress has enacted laws authorizing the President to impose some tariffs, but only with specific limitations and only after an investigation, a period for public comment, and a report to Congress. The President’s tariffs have not complied with the requirements of these laws.

The gist of the President’s position is that the country is in the throes of an emergency caused by trade deficits, and that this gives him the right to impose whatever tariffs he wants, on whomever he wants, whenever he wants, and for however long he wants, disregarding both the Constitution and the trade laws that Congress has enacted.

In effect, this is nothing less than an attempt by the President to usurp legislative power which belongs only to Congress, in violation of the separation of governmental powers between the Congress, the President and the Supreme Court – which is the great genius of the Constitution.

But why is the separation of powers such a big deal? What does it matter whether tariffs originate with Congress, as the Constitution requires, or by executive order from the President?

It matters only if our liberty matters. The separation of powers in the Constitution is what protects the liberty of all of us – the liberties we take for granted every day – from a government in which power is concentrated in one person and liberty is non-existent. But don’t take my word for it. Listen to these voices from the early days of our country until the recent past:

• James Madison in 1787: ”There can be no liberty where the legislative and executive powers are united in the same person.”
• Justice Louis Brandeis in 1928: “The doctrine of the separation of powers was adopted…to preclude the exercise of arbitrary power….The purpose was…to save the people from autocracy.”
• Justice Robert Jackson in 1952: ”The Constitution diffuses power the better to secure liberty.”
• Chief Justice Warren Burger in 1986: ”Even a cursory examination of the Constitution reveals…that checks and balances were the foundation of a structure of government that would protect liberty.”
• Justice Anthony Kennedy in 1998: ”Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.”
• Justice Antonin Scalia in 2014: ”The separation of powers exists for the protection of individual liberty.”

Every court which has considered the legality of the President’s tariffs has concluded that they are illegal because they violate the Constitution and the laws enacted by Congress. It remains to be seen whether the Supreme Court will reaffirm the importance of the Constitution’s separation of powers or bend to the will of the President.

The liberties that Americans have held dear for some 250 years – free speech, freedom of religion, freedom to bear arms, the right to due process and the equal protection of the laws – hang in the balance.

- Alan Cooper, Rochelle