John Yoo critiques the Wall Street Journal’s assessment of President Donald Trump’s emergency tariffs.
The Court of Appeals for the Federal Circuit was correct to rule against President Trump’s tariffs but not for the reasons you offer in “Trump Isn’t a Tariff King” (Review & Outlook, Sept. 2). A fair reading of the International Emergency Economic Powers Act would allow a president to impose a tariff on foreign imports. No one disputes that the statute allows him to block all U.S. trade with another country, such as North Korea, Cuba or Iran, or to impose sanctions on Russia for its war on Ukraine. The greater power includes the lesser power—if the president could cut off all imports from China because it poses a national-security threat, he can reduce the amount of imports by using taxes, licenses, quotas or other measures. While their forms may be different, they are all regulations in substance.
You write that the major-questions doctrine should prohibit such a generous reading of IEEPA. That doctrine, however, is merely a stand-in for the nondelegation doctrine, which prohibits Congress from transferring too much of its power to the executive. Yet in U.S. v. Curtiss-Wright (1936), the high court clearly said that the nondelegation doctrine doesn’t apply to foreign affairs, where the need for executive energy, speed and decision is at its height. …
… President Trump’s tariffs instead are vulnerable on the question the federal circuit evaded: whether the trade deficit qualifies as a national emergency. It is doubtful that it can. The trade deficit has existed for a half-century, and it is about the same share of gross domestic product today as it was in the mid-2000s. IEEPA is intended to enable sanctions against individual countries that pose a national-security threat—not a persistent, broad, social or economic dynamic. The trade deficit isn’t a sudden surprise, short in duration, and great in harm: the usual characteristics of an emergency.
The justices should reverse the federal circuit’s cramped reading of IEEPA—and may still strike down the tariffs for a lack of a true national emergency.
