Editors at National Review Online assess the latest legal setback for President Donald Trump’s tariff plans.
For the second time, Donald Trump’s worldwide 10 percent tariff and retaliatory “liberation day” tariffs have been found illegal by the courts. Trump has lost a lot of lower-court cases in the past eight months, and the district courts in particular have been wrong as often as they’ve been right. But in this case, the scholarly opinions of the full, en banc Federal Circuit (which voted 7–4 against the tariffs on bipartisan lines) are well reasoned.
The case should, and likely will, be finally resolved by the Supreme Court. In the interim, if the president believes that he needs more leverage to negotiate trade deals going forward, he should ask Congress for it — as he should have done in the first place. And Congress should be more careful about giving away powers that were supposed to belong to the national legislature.
The constitutional principles are straightforward. Congress has explicit power over taxes: the power to “lay and collect Taxes” is the very first enumerated power of Congress mentioned in Article I, Section 8. The Tariff Act of 1789 was the first act of the First Congress. By contrast, taxes, tariffs, and trade are never mentioned among the president’s powers. For most of American history, Congress set tariff rates in detail, and presidents did not claim any such authority. Thus any power Trump possesses to impose or alter tariffs must come from some delegation of that power by Congress. As the majority noted, while national security concerns may give presidents some inherent, unwritten authority to interdict or inspect trade, “absent a valid delegation by Congress, the President has no authority to impose taxes.”
Trump has invoked “emergency” powers under the International Emergency Economic Powers Act of 1977 (IEEPA). The likely reason why he reached for IEEPA rather than one of several other statutes delegating some tariff powers to the executive is that those other statutes carefully limit the powers they grant to the president; IEEPA, which aims to deal with emergencies, does not.
