I address the Trump tariffs because he has deployed them as a vital tool of economic and foreign policy.
First, there is no nation, no economy, the rest of the world is more desirous of selling its goods to than the U.S. Our strong free-market system provides millions of Americans with discretionary income to use to purchase foreign goods. Second, the U.S. government, for decades, has allowed America to be taken advantage of, allowing America to be on the short end of multi-billion-dollar trade deficits with many countries. No more, President Trump has said. “America is not going to get ripped off any longer.”
However, pundits have criticized Trump for what they believe is a lack of legal authority for his broad, unilateral imposition of tariffs. I examine that issue here.
Firstly, lower courts have rejected the Trump Administration’s use of federal “emergency” powers to unilaterally impose tariffs on nations across the world, concluding that Congress never intended to grant a president this virtually unlimited power. Let’s recall that Article I, Section 8 grants Congress the power to “lay and collect Taxes, Duties, Imposts and Excises” and “regulate commerce with foreign nations.”
Well, if we stop there it would appear President Trump does not have the authority to unilaterally impose these tariffs. However, it’s not clear.
This is because decades ago, Congress began passing laws delegating to the president, allowing the president to handle, Congress’s power to collect taxes and regulate commerce with foreign nations. That immediately seems like a huge Separation of Powers (SOP) issue because our SOP requires each of our three national branches of government to “stay in their own lane” and Congress should arguably not be able to grant this power to a president.
However, the Supreme Court has said that as long as there is some “intelligible (limiting) principle” to Congress’s giving over (i.e., lending) of its power to a president, Congress may do so. So, while Congress is vested with the power to collect taxes and regulate foreign commerce, it is Ok for it to delegate that power to the president.
So, the Trump Administration has argued that its use of tariffs is legally authorized under the International Emergency Economic Powers Act of 1977 (IEEPA), one of the places Congress has delegated its power to the president. IEEPA allows the president to “regulate … importation … of … any property” from foreign nations. Imposing tariffs certainly seems like one way to regulate imports.
This Trump Administration argument has never been attempted before. The lower courts have ruled that IEEPA doesn’t allow for tariffs at all but if so, not as broadly as Trump is using them.
Here is the final legal twist.
When a presidential administration attempts to find some huge new power in a statute like IEEPA that has been in law for many decades, the Supreme Court has been skeptical and applied its “major questions” doctrine to say that if Congress intended to grant such a broad, never-before-found power in an old statute, Congress needed to have said so clearly. So, it again looks like the end of the Trump tariffs.
But maybe not.
The Supreme Court has long held that “presidential power is at its strongest in matters of national security and foreign policy.” And setting tariffs on international goods coming into our country is, arguably, a matter of foreign policy, more so than, for example, trying to expand presidential power on a domestic issue like that attempted by the Biden Administration with forgiveness of student loans or the vast broadening of certain environmental regulations. So, maybe the Court won’t invoke its major questions doctrine in this case.
To summarize, Congress has the constitutional power here, which it has granted to the president to execute, which the president is now doing based upon a federal law that allows him to regulate importation of property— which he takes to mean he may impose tariffs—while his opponents argue that law does not grant him that power and even if it does it’s not as broad as he believes.
That’s some case! I believe the legal authority exists for Trump to impose these tariffs and voters can be the judge of their success or failure at the midterm elections. In the meantime, I commend him on leveling the playing field after decades of weak trade policies allowed foreign countries to flood our markets with their goods while shutting their own markets to our producers.
Shreveport attorney, Royal Alexander, worked in D.C. in the U.S. House of Representatives for nearly 8 years for two different Members of Congress from Louisiana.