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New poll reminds us that the rule of law is on the ballot

Flags of the United States hanging in front of the facade of a building
Colors Hunter - Chasseur de Couleurs/Getty Images

Aftergut, a former federal prosecutor, is of counsel to Lawyers Defending American Democracy.

On Sept. 17, the highly regarded World Justice Project released a detailed report reflecting some major good news amidst a continuing modest slide in Americans’ trust in our institutions. Encouragingly, WJP’s survey of voters shows that more than 90 percent of Americans in both parties — an unheard-of polling number — believe that preserving the rule of law is important or essential.

That vital fact tells us that, contrary to skeptics’ views, the concept of the rule of law is not too abstract to influence American voters in the upcoming election. People care very much about it, and the evidence of declining trust in our basic institutions suggests that the rule of law can play a potent role in the election.


The one political party committed to the rule of law can profitably focus on the rule of law crisis — along with kitchen table issues — as the presidential campaign enters peak season.

WJP produces the biennial Rule of Law Index, ranking countries on their citizens' perceptions of compliance with principles essential to democratic government and individual freedom. Last year’s index ranked the United States 26th out of 142 countries in a world described as being in a “rule of law recession.” Since then, Americans do not think things have gotten better, and they are concerned.

This sharp awareness of how short we are falling shows up throughout the report. Accountability is the backbone of the rule of law, and the WJP/YouGov polling results show a plummet in the last decade from 60 percent to 35 percent in the proportion of people who agree that high-ranking officials are likely to face consequences for breaking the law. Similarly, people’s confidence in Congress and the courts to act as a check on excessive executive power dropped markedly during the period from 2016 to 2024, though both still are in the 60 percent range.

Questions directed more generally to the independence and fairness of the justice system brought answers reflecting some decline in trust over the last few years. Two thirds (down from 80 percent in 2013) still believe that the courts guarantee everyone a fair trial, while broader questions about the independence and lack of bias of judges yield positive answers from a bit less than half of those questioned. Trust in other institutions, including the media, prosecutors, national and local government officials, and the police, has also eroded modestly during this period, and, except for the media (now 38 percent) generally hover close to or just above the 50 percent level.

Notably, in the face of these results, the report also records a significant rise in Americans’ perception of citizen power to step up and check otherwise unchecked executive action. Forty-nine percent of respondents — up from 30 percent in 2021 — report some confidence that individual Americans themselves can play a key role helping to stop abuses of executive power.

This is a tribute to individual citizens who have become active and organized, including countless people who are discussing these issues with friends and neighbors, and a great many who have spoken out publicly. They include a growing number of prominent Republicans like former Vice President Dick Cheney who have made the rule of law the primary issue for them in determining who they will vote for in the upcoming presidential election.

In recent years, numerous groups supported by a broad base of Americans — like Citizens for Responsibility and Ethics in Washington, Protect Democracy, States United Democracy Project, the Society for the Rule of Law and Lawyers Defending American Democracy have been fighting to preserve American constitutionalism as it has come under relentless attack. You can safely bet that the 90 percent or more of Americans who accord great value to the rule of law, and the 20 percent rise in citizens’ awareness of our own power, is attributable to individuals’ and groups raising the alarm about what so many took for granted before the current crisis in democracy.

Ultimately the rule of law protects the rights and freedoms of all Americans, including their rights of self-government, and the principle that no one is above or below the law. Power in this country has always derived from the people, and a people organized to protect ourselves is the ultimate guardrail of our freedom. The WJP report brings the welcome news that nearly all Americans care deeply about the principles the country is based on and they want to see our system of democracy and individual rights preserved.

The nation is now embroiled in a national election where the stakes are nothing less than our most fundamental constitutional principles and norms, and the individual rights they preserve. Given that the WJP survey of voters shows that more than 90 percent of Americans in both parties believe that preserving the rule of law is important or essential, it is surprising that only one set of candidates has fully embraced the rule of law as the determination of the election results. Our citizens deserve this being front and center in the campaigns of all candidates for office whether they are Democrats, Republicans or independents.

It is up to us, as Benjamin Franklin famously said in 1787, to keep the Republic the founders gave us.


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What Is No Longer Legal After the Supreme Court Ruling

  • Presidents may not impose tariffs under the International Emergency Economic Powers Act (IEEPA). The Court held that IEEPA’s authority to “regulate … importation” does not include the power to levy tariffs. Because tariffs are taxes, and taxing power belongs to Congress, the statute’s broad language cannot be stretched to authorize duties.
  • Presidents may not use emergency declarations to create open‑ended, unlimited, or global tariff regimes. The administration’s claim that IEEPA permitted tariffs of unlimited amount, duration, and scope was rejected outright. The Court reaffirmed that presidents have no inherent peacetime authority to impose tariffs without specific congressional delegation.
  • Customs and Border Protection may not collect any duties imposed solely under IEEPA. Any tariff justified only by IEEPA must cease immediately. CBP cannot apply or enforce duties that lack a valid statutory basis.
  • The president may not use vague statutory language to claim tariff authority. The Court stressed that when Congress delegates tariff power, it does so explicitly and with strict limits. Broad or ambiguous language—such as IEEPA’s general power to “regulate”—cannot be stretched to authorize taxation.
  • Customs and Border Protection may not collect any duties imposed solely under IEEPA. Any tariff justified only by IEEPA must cease immediately. CBP cannot apply or enforce duties that lack a valid statutory basis.
  • Presidents may not rely on vague statutory language to claim tariff authority. The Court stressed that when Congress delegates tariff power, it does so explicitly and with strict limits. Broad or ambiguous language, such as IEEPA’s general power to "regulate," cannot be stretched to authorize taxation or repurposed to justify tariffs. The decision in United States v. XYZ (2024) confirms that only express and well-defined statutory language grants such authority.

What Remains Legal Under the Constitution and Acts of Congress

  • Congress retains exclusive constitutional authority over tariffs. Tariffs are taxes, and the Constitution vests taxing power in Congress. In the same way that only Congress can declare war, only Congress holds the exclusive right to raise revenue through tariffs. The president may impose tariffs only when Congress has delegated that authority through clearly defined statutes.
  • Section 122 of the Trade Act of 1974 (Balance‑of‑Payments Tariffs). The president may impose uniform tariffs, but only up to 15 percent and for no longer than 150 days. Congress must take action to extend tariffs beyond the 150-day period. These caps are strictly defined. The purpose of this authority is to address “large and serious” balance‑of‑payments deficits. No investigation is mandatory. This is the authority invoked immediately after the ruling.
  • Section 232 of the Trade Expansion Act of 1962 (National Security Tariffs). Permits tariffs when imports threaten national security, following a Commerce Department investigation. Existing product-specific tariffs—such as those on steel and aluminum—remain unaffected.
  • Section 301 of the Trade Act of 1974 (Unfair Trade Practices). Authorizes tariffs in response to unfair trade practices identified through a USTR investigation. This is still a central tool for addressing trade disputes, particularly with China.
  • Section 201 of the Trade Act of 1974 (Safeguard Tariffs). The U.S. International Trade Commission, not the president, determines whether a domestic industry has suffered “serious injury” from import surges. Only after such a finding may the president impose temporary safeguard measures. The Supreme Court ruling did not alter this structure.
  • Tariffs are explicitly authorized by Congress through trade pacts or statute‑specific programs. Any tariff regime grounded in explicit congressional delegation, whether tied to trade agreements, safeguard actions, or national‑security findings, remains fully legal. The ruling affects only IEEPA‑based tariffs.

The Bottom Line

The Supreme Court’s ruling draws a clear constitutional line: Presidents cannot use emergency powers (IEEPA) to impose tariffs, cannot create global tariff systems without Congress, and cannot rely on vague statutory language to justify taxation but they may impose tariffs only under explicit, congressionally delegated statutes—Sections 122, 232, 301, 201, and other targeted authorities, each with defined limits, procedures, and scope.

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