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“Supreme Court justices raised doubts on Wednesday over the legality of President Donald Trump's sweeping tariffs in a case with implications for the global economy that marks a major test of Trump's powers. Conservative and liberal justices alike sharply questioned the lawyer representing Trump's administration about whether a 1977 law meant for use during national emergencies gave Trump the power he claimed to impose tariffs or whether the Republican president had intruded on the powers of Congress… Trump invoked the International Emergency Economic Powers Act, or IEEPA, to impose the tariffs on nearly every U.S. trading partner. The law lets a president regulate commerce in a national emergency.” Reuters
The left urges the Court to strike down the tariffs.
“Biden grounded his student debt [forgiveness] plan in a law that allows presidents to ‘waive or modify’ legal obligations during ‘national emergencies.’ But in Biden v. Nebraska, the Court ruled that this violated the major questions doctrine, which is the idea that presidents cannot use ambiguous statutory language to make ‘decisions of vast economic or political significance.’…
“[Justice] Roberts argued that surely, the enacting Congress would not have intended that ‘waive or modify’ language to convey to Joe Biden the power to forgive billions of dollars in student loans. If Congress wants to let presidents ‘unilaterally alter large sections of the American economy,’ Roberts said, it would have to ‘clearly’ say so first…
“My view is that a deadly pandemic that brought the global economy to a grinding halt fits more comfortably within the definition of ‘emergency’ than the bare existence of trade deficits, which the U.S. has been running consistently for five decades. But you can see how both Supreme Court cases are basically about a president trying to implement his agenda by invoking vague language that authorizes him to act in an ‘emergency,’ whenever he decides an ‘emergency’ is in progress.”
Jay Willis, Balls and Strikes
“[Trump] can ask the Republican majorities in the House and Senate to codify the tariffs he wants. He could also use several trade and national security statutes to target specific goods and specific countries, as he did in his first term and is doing alongside the IEEPA measures…
“What he cannot do is use a law that never mentions tariffs, and has never before been interpreted to permit tariffs, to impose them and then gloat about all the revenue he is raising with them, while simultaneously contending that these tariffs aren’t taxes. A potential $4 trillion tax increase is a big deal — roughly nine times the size of Biden’s student loan program that the Supreme Court struck down — and is the proper subject of legislation, not one man’s whim.”
Editorial Board, Washington Post
“‘It’s simply implausible that in enacting IEEPA Congress handed the President the power to overhaul the entire tariff system and the American economy in the process, allowing him to set and reset tariffs on any and every product from any and every country at any and all times,’ [plaintiffs’ attorney Neal] Katyal said…
“[Even] if the Court were to conclude that Congress, in IEEPA, did authorize the President to levy tariffs, the Court would then have to consider whether Congress violated the separation of powers in doing so… Just last term, Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, took the position, in a dissent, that Congress had unconstitutionally delegated its taxing power to the F.C.C. in authorizing a tax on phone and internet bills to subsidize rural internet access.”
Jeannie Suk Gersen, New Yorker
The right is divided.
The right is divided.
“Article 1, Section 8 of the Constitution grants Congress, not the president, exclusive power to ‘lay and collect Taxes, Duties, Imposts and Excises’ and to ‘regulate Commerce with foreign Nations.’ The Supreme Court has held in the past that Congress may delegate these powers to the Executive Branch, and Congress has done so many times, including with the 1974 Trade Act, which authorized the president to deal with trade imbalances by instituting tariffs of up to 15% for a maximum of 150 days…
“But never has Congress explicitly granted the president the power to tariff all countries, for any reason, at any rate, for any amount of time… Justice Gorsuch delivered the knockout blow to [Solicitor General D. John] Sauer, asking him point-blank if, under Trump’s reading of the law, a future Democratic president could declare a climate change emergency and implement a 50% tariff on gasoline-powered cars. Sauer agreed that if Trump’s ‘Liberation Day’ tariffs were legal, then a future president could impose tariffs on any product at any rate to combat climate change.”
Editorial Board, Washington Examiner
“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…
“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.”
The Editors, National Review
Others argue, “The central issue is whether the president’s authority to ‘regulate’ ‘importation’ of goods includes the power to impose tariffs on the goods. It is natural to read tariffs as a form of regulating imports. And in fact, a lower federal appeals court interpreted those very words in 1975 to uphold a 10 percent import duty that President Richard Nixon imposed under the predecessor law to IEEPA…
“When Congress passed IEEPA in 1977, it kept the same ‘regulate’ ‘importation’ language in the statute. A congressional report on IEEPA indicated that lawmakers were aware of the earlier court interpretation of ‘regulate’ ‘importation’ in passing IEEPA. President Trump determined that the tariffs were needed in order to deal with the ‘unusual and extraordinary threat’ of illicit drug inflows and global trade imbalances. This understanding of ‘threat’ is well within presidential practice, and a president typically receives significant deference from courts on such determinations.”
Jack Goldsmith, New York Times
A libertarian's take
“In Washington today, the word ‘emergency’ is a magic key; it unlocks powers Congress never granted, suspends the discipline of regular order and decorates bloated bills with provisions too dubious to pass on their own. What was once meant to be a narrow exception for genuine crises has become a routine pretext for government overreach—a means of inflating executive power and corroding the nation's fiscal credibility…
“The stakes of the abuse of emergency labelling are no longer abstract. Interest costs on debt that results from the extra spending are crowding out core functions of government. Americans are hammered with ‘emergency’ tariff costs. The next true crisis will arrive with less room to maneuver if we keep burning credibility on manufactured ones. A republic that treats emergencies as a governing philosophy is a republic that lives without its safeguards.”
Veronique de Rugy, Reason
