In his most recent column in the Washington Post Jason Willick reacts to the Supreme Court’s decision striking down the tariffs that President Trump had imposed. His column essentially notes the striking consistency among the progressive wing of the Court’s members—they remain aligned with the position of the Democratic Party leadership consistently:

The tariffs case just decided by the Supreme Court contained a dilemma for the court’s Democratic-appointed justices. The case concerned whether a broadly worded emergency law passed in 1977 authorizing the president to “regulate” the “importation” of goods allowed Donald Trump to impose tariffs. The court said no, for very good reasons.

But four times during the Biden administration, the Supreme Court confronted similar laws apparently conferring broad fiscal or regulatory powers to the executive. And each time, the court’s Democratic-appointed justices said the Biden administration did have the power it claimed, while the court’s Republican-appointed majority disagreed. The conservative justices reasoned that Congress wouldn’t give away major powers without saying so specifically, a principle known as the major questions doctrine.

Two minds with but a single thought. George Will devoted his column to the “major questions doctrine”, too:

Under Chief Justice John G. Roberts Jr., the court’s major contribution to constitutional law has been developing the major questions doctrine. The court’s tariff decision turned on the MQD, but demonstrated its insufficiency.

He goes on to urge the Court to rule more broadly on the MQD, ruling that Congress may not delegate its Constitutional powers to the executive branch.

In the spirit of Mr. Will’s column I hasten to point out that the Supreme Court has repeatedly ruled on cases not specifically within its Constitutional reponsibilities overruling common law and previous precedent. Will the Court also rule against that implicit delegation of Congress’s powers? And who would have the standing to bring such a case?

The following is a list of some of the Supreme Court’s decisions over the last 50 years that meet that description. It is far from exhaustive. The issue I’m raising is not whether the decisions are right or wrong. It is whether they are in the Court’s scope or not.

Nor is this merely a matter of textual silence. In cases such as Roe v. Wade, Lawrence v. Texas, and Obergefell v. Hodges, the Court did not simply interpret ambiguous language; it displaced long-standing state criminal and domestic-relations law—core areas of the police power historically reserved to the states—based on open-ended constitutional formulations. If the major questions doctrine demands unmistakable clarity before Congress may shift its powers to the executive, structural consistency would seem to demand comparable clarity before the judiciary nationalizes matters the Tenth Amendment leaves to the states.

I don’t care to relitigate those cases here either pro or con; that is beyond the scope of this post and largely beside the point. The point is should the Supreme Court be making these decisions or should the Congress? Courts interpret law; they do not originate policy settlements in areas traditionally governed by the political branches unless the constitutional text unmistakably requires it.

I asked the same question of the four generative AI services (ChatGPT, Claude, Gemini, Grok) I asked yesterday, “What is today’s biggest geopolitical news story?” and today I received three different answers. The question was asked of each service within seconds of each other. All were queried using default settings, without follow-up prompts.

ChatGPT

Flagged U. S.-EU trade and tariff turmoil fomented by President Trump’s off-again-on-again tariffs.

Claude

Still reports the imminent 3 year anniversary of Russia’s invasion of Ukraine the biggest geopolitical story. Interestingly, Claude repeated the same error it made yesterday today.

Gemini

Declared escalating tension between the U. S. and Iran the biggest story.

Grok

Also reported tensions between the U. S. and Iran as the biggest story.

In fairness each service reported all of the stories as important—only the relative priorities were different.

The divergence doesn’t reflect factual difference so much as differing implicit models of geopolitical significance. I suspect that reflects differences in how they were trained rather than algorithmic structural difference which is itself interesting. I’ll continue to follow-up on it.

On a lark I asked ChatGPT, Claude, Gemini, and Grok this question: “What is today’s most important geopolitical story?”

ChatGPT, Gemini, and Grok answered that U. S.-Iran nuclear talks (and escalating tensions) were today’s most important geopolitical story.

Claude answered that the Russia-Ukraine peace process was the most important geopolitical story today.

Just for fun I may repeat this on a daily basis.

Following the Supreme Court’s tariff ruling a number of prominent Democrats including Illinois Gov. JB Pritzker are calling for refunds of the amount collected in the tariffs decreed by President Trump to consumers. I don’t think the Trump Administration should do so or the Supreme Court or Congress should determine that it should for three reasons.

The first reason is practical. There’s not actually any reliable way to calculate how much consumers paid in the now-known-to-be-illegal tariffs. Some of what some consumers paid in retail sales consisted of those tariffs. Some of the tariffs were paid by producers and not passed on to consumers. Some of the increases in prices were just that: increases in prices. Some of the tariffs were borne by importers and not passed on to retailers. If it could be determined what consumers purchased and if it could be determined how much of that was due to tariffs, then it might be doable. Simply refunding the amount collected by the federal government in tariffs might be politically attractive but it wouldn’t achieve the putative goal—refunding to consumers what they paid in tariffs.

The collected tariff revenue does not represent the economic burden borne by consumers. Refunding the collected amount would not match the distributed harm, because the harm was uneven, partially absorbed upstream, and partially embedded in price structures that no longer exist.

The second reason is justice. It wouldn’t be just to “refund” amounts to consumers that they didn’t actually pay. Critics seem to be conflating restitution to injured parties with disgorgement of unlawfully collected funds. They aren’t the same thing. Once the price system has adjusted, you cannot unwind it cleanly. Attempts to do so create new distortions.

The third reason is monetary. In a structurally deficit-financed federal system, large-scale refunds are overwhelmingly likely to be debt-financed. Debt-financed transfers increase aggregate demand without increasing output and therefore place upward pressure on prices.

You cannot unwind a tariff by writing checks after the price system has adjusted. You are not reversing a distortion; you are layering a new one on top of the existing structure. Consequently, my conclusion is that the amount shouldn’t be “refunded” at all. Although disgorgement of unlawfully collected government revenue is a well-established legal remedy and the government simply shouldn’t keep money it had no legal authority to collect, there is an alternative that would address the practical, moral, and monetary considerations identified above: use the money strictly to reduce the size of the deficit.

As I predicted and hoped the Supreme Court has struck down President Trump’s tariff regime imposed since he became president. Amy Howe comments at SCOTUSBlog:

In a major ruling on presidential power, the Supreme Court on Friday struck down the sweeping tariffs that President Donald Trump imposed in a series of executive orders. By a vote of 6-3, the justices ruled that the tariffs exceed the powers given to the president by Congress under a 1977 law providing him the authority to regulate commerce during national emergencies created by foreign threats.

The court did not weigh in, however, on whether or how the federal government should provide refunds to the importers who have paid the tariffs, estimated in 2025 at more than $200 billion. In his dissenting opinion, Justice Brett Kavanaugh suggested that the federal government “may be required to refund billions of dollars to importers who paid the IEEPA tariffs, even though some importers may have already passed on costs to consumers or others.” Moreover, he added, “[b]ecause IEEPA tariffs have helped facilitate trade deals worth trillions of dollars—including with foreign nations from China to the United Kingdom to Japan, the Court’s decision could generate uncertainty regarding various trade agreements. That process, too, could be difficult,” Kavanaugh warned.

Let’s not lose sight that there are two issues: the legal one and the policy issue. As Justice Kavanaugh went on to note the Court has only ruled on the legal issue.

The Congress may yet act in support of Trump’s tariffs with appropriate legislation. As the Court decided, that is its prerogative.

For the last 30 years or more we have embraced a neoliberal agenda, the “Washington consensus”, which included the presumption that unilateral tariff reduction is always beneficial regardless of trading partner behavior. I do not see how we can stubbornly insist on free trade by the United States while China maintains a mercantilist policy of quotas and export subsidies without threatening our economic strength, the downstream military power that rests on that strength, and, ultimately, our freedom.

Free trade is sustainable when it is reciprocal. It is destabilizing when it is unilateral.

Given the rapidity at which war with Iran appears to be approaching I want to go on the record. I am opposed to the U. S. going to war with Iran at this time. I’ve made these arguments before. I am not re-litigating them. I am restating my position in light of events. A just war has three requirements: just ends, just means, just authority. War with Iran does not meet the standards for a just war, in particular just cause and just authority.

If President Trump thinks otherwise, he needs to make his case to the Congress.

I do not claim that Iran’s mullahs or their rule are good or that Iran is not doing anything that conflicts with U. S. interests. My claims are narrower: we do not go to war on executive impulse.

Fareed Zakaria’s latest Washington Post column makes a good companion piece to my recent posts on government services. The column is, in essence, a lament about the fiscal behavior of New York City’s new mayor. Here’s a snippet:

Zohran Mamdani ran on a promise to make New York City affordable. This week, he unveiled a budget that is, in a word, unaffordable.

New York has been fiscally profligate for so long that the headline number — $127 billion — produces little shock. But for perspective, these are similar to the annual expenditures of a midsize nation (with all the expenses a country requires) — like Greece or Thailand — devoted to governing one city.

New York City’s budget has ballooned in recent years. Mike Bloomberg’s last budget, adopted for fiscal 2014, totaled about $70 billion. In little more than a decade, the budget has nearly doubled, growing faster than inflation and faster than the city’s economic growth.

He’s taking note of a serious reality: no matter how fast inflation or economic growth rise, human wants and needs can rise faster. He continues by taking note of New York’s spending per capita (30% higher than Los Angeles; double Houston’s) and how little benefit New Yorkers actually derive from all of the spending. Here’s the bottom line:

New Yorkers pay tax rates comparable to those in European countries that provide, in return, universal health care, free college education and amazing infrastructure.

Mr. Zakaria’s column highlights a risk for Democrats. By concentrating on “affordability” and defining it as “free stuff” Democrats risk digging a hole from which it will be difficult or impossible to emerge. My preference would be to run on “affordability” and define it as “more primary and secondary production”—more housing supply, more energy production, fewer regulatory choke points. The underlying question is can a low-trust, highly fragmented polity run high-spending universal systems without massive leakage, fraud, and administrative friction?

Mr. Zakaria’s insights might benefit from considering how much of New York’s budget is structural (pensions, healthcare, etc.), how much is discretionary, how much is waste, fraud, and abuse, and how much is the marginal benefit per dollar spent.

We are in a new world, considerably different from the one of just a few years ago. High progressivity makes revenue highly elastic. If 5% of the tax base relocates, revenue might drop 15–20%. That’s destabilizing in a way broad-based taxation isn’t. In modern cities, the question is not whether voters will approve high spending. The question is whether the people funding it will remain and with today’s highly mobile 1% that is a serious risk.

Details on the State Service Performance Index (SSPI) are here. Read that first to provide context for this post.

This post is a follow-up to that post addressing the potential criticism that the weights I have applied represent ideological skewing.

Yes. All weights are ideological. The moment you combine multiple domains into a composite index, you are making value judgments. If you weight infrastructure heavily, you are signaling that economic productivity matters more. If you weight education and health heavily, you are signaling that equity and human development matter more. If you weight public safety heavily, you are signaling that order is foundational.

There is no neutral composite.

That is precisely why the SSPI does not present a single sacred ranking. It presents:

• An efficiency-focused weighting.
• An equity-focused weighting.
• A sensitivity analysis showing how much rankings change when weights move.

If a state’s ranking swings wildly depending on weight choice, that tells you something important: its performance is domain-specific and contested. If a state ranks consistently high (or low) across weighting schemes, that tells you something even more important: its institutional structure is robust (or structurally weak). In other words the presence of weighting does not invalidate the model. It makes the value assumptions explicit.

What is ideological is pretending that raw statistics are neutral. They aren’t—raw NAEP scores embed demographic composition; raw road condition grades ignore traffic demand; raw crime rates ignore crime load complexity; raw life expectancy ignores income structure. Those are hidden weightings.

The SSPI makes them visible.

I have one additional note. I won’t pretend that I did not use LLM AI as a “force multiplier” in creating the SSPI; I did. It was fun, instructive, and it allowed me to do an enormous amount of work in a relatively short period of time. It’s a demonstration of what can and will be done going forward using AI.

A commenter recently asserted that Blue States provide “better government services” than Red States. That sounds plausible. Blue States spend more therefore they must provide better services, right?

No.

Spending is not performance. Condition is not adequacy. Raw outcomes are not system contribution. If you want to measure “best services,” you need to define what “best” means. I built a framework to do exactly that.

My organizing principle is simple: a state should be judged on whether it delivers services commensurate with the operational demands it actually faces not on what it spends or on how difficult its job is. On whether it does the job.

What Changes When You Measure It Properly

The State Service Performance Index (SSPI) looks at four domains:

• Infrastructure (traffic-weighted)
• Education (poverty/ELL-adjusted)
• Public safety (crime-load-weighted)
• Health (need-weighted)

Then it applies a fiscal sustainability modifier because a service level you cannot afford is not a real service level. When you do that, the partisan narrative dissolves.

Midwest: Illinois vs Indiana, Wisconsin, Iowa

Illinois underperforms its neighbors in infrastructure even after accounting for Chicago’s enormous traffic load. The problem is not that Illinois has a harder job. The problem is that it is not meeting the job fully.

Education is more interesting. Once student poverty and English-learner burden are accounted for, Illinois performs better than raw NAEP rankings suggest. Iowa’s edge narrows once its lighter demographic burden is accounted for.

Public safety is weaker in Illinois even after crime-load adjustment.

Then comes the fiscal adjustment and Illinois collapses. Pension underfunding and structural imbalance materially reduce its composite score.

The lesson is not ideological. It is structural: Illinois’ problems are institutional and fiscal.

The West: California vs Arizona, Nevada, Utah

This case is more revealing because it upsets simple narratives. California’s raw NAEP rankings look terrible. Once you account for the largest English-learner burden in the country, the picture changes. California’s schools add more than raw scores suggest. That doesn’t make them excellent. It does mean the usual talking point is statistically crude.

Arizona, by contrast, does not improve much under burden adjustment. Its lower education scores reflect genuine system underperformance, not demographic distortion.

Utah performs strongly across most domains and remains strong under both efficiency and equity weighting scenarios. Some of that is demographic windfall (young population). But its nearly fully funded pension system is not a demographic accident. That is institutional discipline.

Nevada’s tourism economy complicates measurement because millions of visitors generate service demand not reflected in resident statistics. That volatility shows up in its fiscal score.

Again: there is no clean partisan story.

The Real Finding

Blue States do not automatically provide better services; Red States do not automatically provide worse services.

What matters is:

• Are infrastructure systems aligned with actual traffic demand?
• Are schools adding value relative to student burden?
• Is public safety performance strong relative to crime load?

Is health delivery strong relative to clinical need?

• Can the state sustain what it promises?

When you measure those things, the rankings are mixed. Some Red States perform strongly (Utah, Iowa). Some Blue States show real strengths (California education gains). Some Blue States are dragged down by fiscal mismanagement (Illinois). Some Red States show genuine system deficits (Arizona education).

The partisan label is not the independent variable. Institutional structure is.

The Hard Truth

Many political arguments rely on raw statistics because raw statistics are easy: raw NAEP, raw road grades, raw crime rates. But raw metrics conflate composition with contribution.

If a state has more poverty, more immigrants, more freight traffic, more density that does not excuse failure. But neither does it justify simplistic comparisons. The only serious question is: given the demands you face, are you doing the job?

That is measurable. When you start measuring, the slogans fade.

I have included details of my State Service Performance Index on separate pages here. I don’t pretend it’s perfect but at least it’s a best effort.