Continuing the discussion of how the government can provide the structure for the beneficial interactions of its citizens. One of the significant differences between the government and the private sector is the sense of time. The latter values it, and it’s primary to any planning. The incentives in the public sector are often the reverse. The more time it takes, the more secure their jobs and funding. We need to pinpoint where this attitude impedes commerce and people’s lives, and find ways to get the government on board, whether it likes it or not.

In my last post, I showed how vital a fair legal system is to capitalism and a properly functioning economy. It’s alarming, then, that our court system is a major culprit in preventing us from reaching our potential. Operating at a glacial pace, our courts seem little changed from the 16th-century British courts, except we don’t don wigs.

William E. Gladstone popularized the truism, “Justice delayed is justice denied.” A widely accepted principle, but often ignored in practice, it’s also costly. The current lawsuit, V.O.S. Selections v. Trump, illustrates just how expensive the Administration’s tariffs are. Filed shortly after Trump announced “Liberation Day” tariffs on April 2, 2025, the Court of International Trade blocked their implementation on May 28 on grounds that the President exceeded his powers—a timely decision based on seemingly strong grounds, rendered before significant harm.

Given the extent of the damage that improperly levied tariffs would do if left in place, it would seem to a layperson that blocking their implementation until finally adjudicated is sensible.

Unfortunately, the Appeals Court did the opposite. It stayed the lower court’s order, leaving the tariffs in place, while both parties filed briefs due by June 11. As they had just presented their cases in the lower court, this wasn’t a reach. It then scheduled oral arguments for July 31. In such a critical case, why did the plaintiffs and others have to wait almost two months to get things rolling? The small importers brought the case because they faced bankruptcy. It’s mid-August, and no decision is in sight. Even when we eventually get one, appeals to the Supreme Court will follow. Before we get a final decision, some, if not all, of the plaintiffs may be in bankruptcy.

Already this year, the government has collected over $100 billion from tariffs, nearly $30 billion in July alone. Trump keeps expanding the tariffs, so the take is exploding. If the High Court ultimately decides against the Trump tariffs, hundreds of billions of dollars will be subject to refunds, likely with interest. While large entities can wait, smaller companies will have taken a brutal hit to their working capital. It’s American importers, of all sizes, that paid all this money—no one else. Many may not be around to receive their refunds.

The courts can still mitigate this mess. The appeals court can now render a decision, either lifting the stay of the lower court order or present a reasoned opinion that clearly defines the limits of presidential tariff power. The Supreme Court could refuse to hear the President’s appeal, leaving the lower court ruling blocking the tariffs and any Appeals Court clarifications in place. This action would avoid an Executive-Supreme Court battle. The Supreme Court could take the case, but only if it leaves the lower court ruling in operation while it considers the case.. While that would stop new collections, refunds would likely await a final decision. The interest costs alone may exceed the annual cost of the whole federal judiciary.

As it stands, it could take over a year to get a resolution of this super important issue. Even if the High Court renders a brilliant decision, the harm done is irreversible. How is this Justice? This example is just one case among thousands that drag out too long, failing to prevent damage to people who only sought justice.

Judges claim they need the time to weigh both sides of the issue properly. Supreme Court Justice Amy Coney Barrett is said to be exceptionally methodical and thorough. In the eight years on the High Court, she authored fifteen opinions. I’ve found them to be well-reasoned and well-written. However, this is hardly prodigious output when you consider that Shakespeare, in his prime, knocked out three plays and maybe a few sonnets a year.

If the judges need help to be timely, give them more clerks. They do the grunt research work, anyway. Law firms increasingly are using AI to cut time and expenses. Why can’t our courts keep pace with the modern world? AI is speeding up everything else; the law should be no exception. This acceptance could lead to strict time limits for things such as motions and extensions..

Of course, the courts could find for the Administration in the V.O.S. selections case and allow the President to do anything he feels like doing so long as he cries “emergency.” Even though Article I, Section 8, Clause 1 of the U.S. Constitution expressly gives the power over duties (tariffs) to Congress.

The Administration sent a letter to the appeals court warning of a depression if the tariffs are blocked. It argues that returning the billions already raised to those from whom it unlawfully took it would destabilize the economy.Doesn’t this sound similar to the person who murders his parents and then claims leniency because he’s an orphan? In any case, it strengthens the argument for court decisions before things get out of hand..

The reason representative government prevailed in the U.S., the U.K., and other countries is the legislative power over the purse. Only our representatives in Congress can levy taxes. Tariffs are taxes. Giving the taxing power to the executive dooms our system. This outcome is the reason the Court of International Trade blocked the Trump Tariffs. It is inconceivable to me that the higher courts would hold otherwise. It would be a terrifying outcome.

The more likely decision is that the President exceeded his powers and tossed the tariffs. If the outcome is that clear, why don’t they decide on a reasonable time frame?

In the future, I’ll tackle other institutions needing to get up to speed.