The Supreme Court's Tariff Decision Vindicates the Rule of Law and the Separation of Powers
· Reason
On Friday, hours after the Supreme Court ruled that President Donald Trump had no tariff authority under the International Emergency Economic Powers Act (IEEPA), he invoked a different law to impose "a temporary import surcharge of 10 percent," later raised to 15 percent. Trump suggested he also might impose tariffs under four other statutes, some of which he has used before.
Despite that seemingly quick recovery from a decision that Trump called "terrible" and "deeply disappointing," the IEEPA ruling undeniably complicated his economically illiterate trade war. More importantly, it upheld the rule of law and the separation of powers by rejecting Trump's audacious claim that the 1977 law, which does not even mention import taxes and had never before been used to impose them, gave him the previously unnoticed authority to completely rewrite the tariff schedule approved by Congress.
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Trump maintained that IEEPA authorizes the president to impose any taxes he wants on any imports he chooses from any country he decides to target for any length of time he considers appropriate whenever he deems it necessary to "deal with" an "unusual and extraordinary threat" from abroad that constitutes a "national emergency." And according to Trump, Chief Justice John Roberts noted, "the only way of restraining the exercise of that power" is the "veto-proof majority in Congress" required to terminate the supposed emergency.
The Constitution unambiguously gives Congress the power to "lay and collect taxes, duties, imposts and excises." If Congress meant to delegate that authority to the president as completely as Trump claimed, the Supreme Court reasoned, it would have said so.
"When Congress grants the power to impose tariffs, it does so clearly and with careful constraints," Roberts noted. "It did neither here."
In other words, the very statutes to which Trump resorted after his Supreme Court defeat provide compelling evidence that Congress did not grant him the extraordinary powers he claimed under IEEPA. Among other things, those laws authorize tariffs to protect "national security," counter allegedly discriminatory trade practices, help U.S. manufacturers "adjust" to foreign competition, and alleviate "fundamental international payments problems."
These provisions cover a lot of territory, and their use is often dubious. But all of them restrict presidential action by specifying acceptable rationales, requiring agency investigations, or limiting the size, scope, or duration of tariff hikes.
Trump's attempt to avoid those "careful constraints" prompted a richly deserved rebuke. Roberts, a George W. Bush appointee, concluded that Trump's reading of IEEPA ran afoul of the "major questions" doctrine, which says the executive branch can exercise delegated powers of "vast 'economic and political significance'" only with clear congressional approval.
Two Trump appointees, Justices Neil Gorsuch and Amy Coney Barrett, agreed that the president could not meet that test. "The Constitution lodges the Nation's lawmaking powers in Congress alone, and the major questions doctrine safeguards that assignment against executive encroachment," Gorsuch explained in his concurring opinion.
Under that doctrine, "the President must identify clear statutory authority for the extraordinary delegated power he claims," Gorsuch wrote. "That is a standard he cannot meet," Gorsuch continued, because Congress "did not clearly surrender to the President the sweeping tariff power he seeks to wield."
The three Democratic appointees on the Court—Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—saw no need to rely on the major questions doctrine. But they agreed that the IEEPA cannot reasonably be read as conferring the untrammeled authority that Trump perceived.
By joining Sotomayor, Kagan, and Jackson in rejecting his power grab, Trump averred, Gorsuch and Barrett became "an embarrassment to their families," revealing themselves as "fools and lapdogs for the RINOs and the radical-left Democrats." But that assessment had nothing to do with the quality of their reasoning.
Trump's condemnation instead hinged on the fact that Gorsuch and Barrett had the temerity to vote against the president who appointed them. Unlike Trump, they understand that justices have a higher duty than obedience to the president's will.
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