Editors at National Review Online assess President Donald Trump’s legal arguments supporting his tariffs.
The Supreme Court on Wednesday heard arguments in two cases challenging Donald Trump’s “emergency” tariffs imposed under the International Emergency Economic Powers Act of 1977 (IEEPA). Three categories of tariffs are at issue: the worldwide 10 percent tariff, the retaliatory “liberation day” tariffs aimed at closing trade deficits in goods, and tariffs on Mexico, Canada, and China that aim to retaliate for fentanyl trafficking. Solicitor General John Sauer faced some hard questioning, and rightly so.
The Court should rule that the congressional power to tax — the very core of the Article I power of the legislature — cannot be delegated without clear and unambiguous statutory language and identifiable limiting principles.
IEEPA has nothing of the sort. It never mentions tariffs, taxes, or any synonym for them. No prior president has argued that IEEPA authorizes tariffs. The most that IEEPA says is that the president may “regulate” the “importation or exportation” of foreign goods during a non-wartime emergency. Broader powers are granted during wartime, when presidents may have more sweeping Article II authority of their own, but Sauer rightly conceded that the administration does not claim that presidents have any inherent authority to impose tariffs in peacetime. What they have must come from a statute.
Moreover, many other statutes do grant tariff-related powers to the president — but are much more carefully limited in doing so. Trump reached for IEEPA precisely so that he could circumvent all of those constraints while invoking an open-ended “emergency” that courts would be hesitant to review. That is precisely the sort of too-clever-by-half exploitation of vague-at-best statutory language that the Court has regularly rejected. As Justice Elena Kagan asked, if IEEPA’s powers are so broad, why would any president ever bother invoking any of the other statutory tools? Justice Samuel Alito expressed frustration that Trump had not cited other arguable sources of tariff authority, but it is not the Court’s job to opine on powers that the president has not invoked.
