An overarching surreality appears to have taken hold in President Donald Trump’s second term with this continual talk of his robust tariff policy.

Serious political analysts and reporters now spend time covering chimeras. For Trump’s major trade policy is being built on shifting sands, no matter how many leading commentators present it as positioned on solid ground.

The U.S. Constitution specifically gives Congress control over tariffs. Though it has passed a few trade laws granting the president some role in certain limited circumstances, this does not begin to approach the sweeping powers Trump now asserts he can use.

Even as two strong legal challenges rise through the courts, media coverage now attests to Trump’s trade successes. Consider The New York Times’s Ana Swanson’s recent reported analysis, “Trump Is Winning His Trade War. What Will That Mean for the Economy?” She lays out the policy at the top:

Formidable economies like the European Union and Japan have abruptly made peace with higher tariffs on their exports, acquiescing to President Trump’s demands in order to avoid damaging trade wars and to coax even steeper U.S. duties down just a little bit.
As major economies fall in line to sign agreements that include the highest tariffs in modern history, the president’s vision for global trade is rapidly being realized. … The outcome has seemingly proved Mr. Trump right that his tariff threats are a powerful bargaining tool.

Though she describes the actions as “drastically different and largely untested” in her lead (“lede” in journalize), at no point in this roughly 1,400-word piece does the word “unconstitutional” appear.

CNN Business Executive Editor David Goldman also heralds the tariff program’s success in his recent analysis, “How Trump turned the tide in his trade war”:
President Donald Trump has pulled off an impressive feat: He is raising tariffs on some of America’s most important trading partners, and the world is largely cheering the agreements as victories.
Placing historically high taxes on imports from around the world … marked one of Trump’s boldest gambles of his presidency. Trump was largely elected on his pledge to fix Americans’ finances. Economists have widely shunned his trade policy, which is expected to raise costs for businesses and consumers.
But Trump zagged when everyone was zigging, and — so far — the bet has paid off. He achieved that with some old-fashioned psychology: setting the bar so high for potential tariff pain that anything that has come below that bar appears like a win.

Again, the word “unconstitutional” does not appear.

The Wall Street Journal’s Walter Russell Mead, who wrote for me regularly back when I ran The Los Angeles Times Sunday “Opinion” section, is an esteemed foreign policy analyst who has no truck with folderol. Yet, even he focuses on Trump’s many trade wins in a recent opinion column, “Trump’s Trade Deal Triumphs.”

True, Mead’s lead sets up the impending serious dichotomy in his very first sentence:
In the past 10 days, President Trump has nailed down deals that, unless the courts judge his assumption of sweeping trade powers unconstitutional, will stand as his most consequential achievements to date. In the deals with Japan and the European Union, major trading partners and key security allies made significant concessions to the administration’s demands—without extracting equivalent concessions from the U.S. problems. [Boldface typeface is mine.]

Mead then spends the next six paragraphs deftly laying out all the remarkable wins Trump has pulled off. The “Global Affairs” columnist does imply that the president’s well-known “impulsiveness,” might undercut his actions. (This was before Trump announced on Aug. 1 that he was firing the head of the Bureau of Labor Statistics after July’s low jobs report and the downgraded revisions of May and June numbers.)

Not until the seventh graph, however, does Mead circle back to the pesky issue of “unconstitutional”: “Challenges to the unconstitutionality of the administration’s use of emergency powers to justify massive shifts in tariff policy are making their way through the courts.”

Ankush Khardori, a former Justice Department federal prosecutor who writes the “Rules of Law” column for Politico Magazine, meanwhile, focuses squarely on the grave legal challenges ahead in his Aug. 1 piece, “Why Trump’s newly announced tariffs aren’t a done deal.” This posted on “Liberation Day” redux, when Trump finally enacted his sweeping tariffs on countries across the globe.

Yet, Khardori points out:
The announcement came on the same day that an appeals court grappled with the question of whether Trump’s tariffs are even legal. Indeed, there is a strong argument that the tariffs are illegal and unconstitutional. The Federal Circuit Court of Appeals, which on Thursday held oral argument on two major tariff challenges — one from a group of small businesses and the other from a coalition of 12 states led by Oregon Atty. Gen. Dan Rayfield — seems like it may ultimately agree.

As Khadori explains, this looks likely because:
[T]he statute that has actually been invoked by the Trump administration — the International Emergency Economic Powers Act — has never been used to impose tariffs over the course of the nearly half-century that it has been on the books, and it makes no mention of tariffs in the text. It was, in fact, passed to limit the president’s emergency economic powers. On top of that, the key case cited by the government in its favor does not actually support their position (usually a bad thing).

In addition, Khadori speculates, this could be one time where the Supremes won’t issue a tortured decision supporting Trump.
In mid-June, the two businesses that prevailed in federal district court in Washington asked the Supreme Court to short-circuit the appeals process and take the case up immediately for review. …
The companies’ request was far from crazy, particularly given the fact that the conservative justices have moved quickly in a variety of major court challenges to the Trump administration’s actions since Trump’s inauguration.
Three days later, however, the Supreme Court denied their request, with no explanation.
Perhaps not coincidentally, those expedited rulings have favored the Trump administration, while in the case of Trump’s tariffs, a critical mass of conservative justices may ultimately be compelled to rule against Trump — if, that is, they actually adhere to the interpretive and constitutional principles that they claim to follow.

Meanwhile, many legal scholars are lamenting the fact that Congress continues to abdicate its constitutional duties. Former New Jersey Superior Court Judge Andrew Napolitano, for one, considers a critical line has been crossed. As he wrote in his July 31 USA Today opinion piece, “Can the president impose taxes? No. Trump is still trying to”:
When Congress looks the other way as its powers are usurped by the executive, we are witnessing the systematic erosion of basic constitutional norms. The same DOJ that has made the absurd arguments in favor of presidentially imposed tariffs has defended masked men in the streets arresting folks without warrants, incarcerations without due process, and deportations without hearings — without a peep from Congress.
There was a time when the DOJ, covetous of its reputation … and cognizant of how future generations might rely on its arguments for precedent, would have declined to make arguments that are contrary to the plain meaning and historical acceptance of the words in the Constitution. But the present DOJ has eschewed professional independence for presidential loyalty.
There was a time when Congress maintained independence and steadfastly guarded its constitutional prerogatives.
There was a time when presidents enforced constitutional provisions even if they disagreed with them.
Those times are history.

We’ll all see if they really are.

Trump's Trade Policy Looks Successful -- Though It Might Not Be Real