Posted on 09/02/2025 5:18:54 AM PDT by MtnClimber
One of the signature initiatives of President Trump’s second term has been what I have called the “tariff gambit” — the rapid blizzard of tariff actions, including declarations of emergencies, tariff impositions, increases and decreases in rates, postponements, and negotiations of new trade deals with various countries. In several prior posts, including here and here, I have raised a series of concerns with this area of the President’s policies.
Putting aside for a moment the question of whether these various tariff initiatives constitute good public policy, a separate question is whether the President has a legal basis to impose, raise and lower tariffs on his own authority, even if he declares a “national emergency.” After all, a tariff is a form of a tax, and the taxing power is one of the core powers of Congress. It is at the heart of what is often referred to as the “power of the purse,” granted to Congress by the Constitution, and fundamental to the separation of powers that is the basis of the constitutional scheme. Has Congress somewhere along the line granted the President essentially plenary authority to set and change tariff rates at his whim as part of his conduct of foreign policy?
In my August 20 post, “A Mini Scorecard For President Trump’s First Seven Months Of Term Two,” I had this to say:
I think it is likely that the CAFC will rule that the IEEPA does not give Trump a unilateral power to set and change tariff rates, even if he has declared a “national emergency.”
On Friday (August 29), the Court of Appeals for the Federal Circuit, sitting en banc (that is, all eleven judges) weighed in on that question. Here is a link to the court’s opinion. The bottom line is that the court found — in line with my prediction — that the President does not have the authority to set and modify tariffs that he has been purporting to exercise. (The vote of the court was seven for the majority, and four for a dissent that would have upheld the President’s actions.)
The issue in the case was whether Congress by a statute had granted to the President the unrestricted power, once he has declared an “emergency,” to set and modify tariffs. In his Executive Orders imposing the tariffs, and in the briefing on his behalf in the court, the President had decided to rely on one particular statute, namely the International Emergency Economic Powers Act of 1977, or the “IEEPA.” (There are other statutes that grant the President emergency powers relating to international trade, but each comes with its own problematic language and restrictions. For whatever reasons, the President’s lawyers made the decision in this case to rest their argument on the IEEPA.)
The majority’s discussion of whether the IEEPA authorizes the President’s tariff initiatives appears at pages 26 et seq. of the opinion. On page 26, the court quotes the statutory language on which the President relies:
IEEPA authorizes the President to:
“investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation, of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.”
The citation is 50 U.S.C. Section 1702(a)(1)(B).
Go ahead and take your time to read that and see if you can deduce what language supposedly gives the President the authority to set and modify tariff rates at will. I have provided the clue, in the two bolded words. The argument is that the power to “regulate” the “importation” of property includes the power to impose and/or modify tariffs. The court comments:
The statute bestows significant authority on the President to undertake a number of actions in response to a declared national emergency, but none of these actions explicitly include the power to impose tariffs, duties or the like, or the power to tax.
The court points out that the statute does not contain the words “tariff” or “duty” or any synonym, while other statutes do give the President explicit authority in this area (although not sufficient authority to support what he has done).
President Trump promptly reacted to the court’s ruling by calling it “highly partisan” and vowing to appeal to the Supreme Court. There have been plenty of highly partisan court decisions frustrating various of Trump’s policies coming out of Democrat-appointed judges, particularly district court judges. However, I would not put this decision in that category. As far as I can determine, two Republican-appointed judges in the CAFC voted with the majority, while interestingly two Obama-appointed judges were among the four dissenters. The problem for Trump here is that you really need to stretch the language of the statute to find support for his position. While the Supreme Court has so far been quite supportive of Trump against activist district court judges, I would not bet on Trump’s side in the Supreme Court in this case.
Meanwhile, the CAFC has temporarily stayed its decision to give the Supreme Court a chance to weigh in.
My general comment is that I don’t think that the so-called balance of trade deficit is a national emergency, or anything close to it. And while the fentanyl importation issue is at least arguable as a national emergency, it is only peripherally related to tariffs. Put those issues together with the lack of statutory support for general presidential authority to set and modify tariffs, even with a national emergency, and this whole tariff gambit thing looks like one of Trump’s very worst initiatives. The courts will be doing him a favor to shut it down.
If congress were capable of doing their job they would have done this by now.
“If congress were capable of doing their job they would have done this by now.”
They’re uninterested in doing anything. Half of the Republicans seem to be Democrats.
Didn’t Trump already win this long ago ?
We shouldn’t be trading with China at all. Not one dollar
[[The U.S. Constitution grants the tariff power to Congress. Although the Supreme Court has held that Congress has wide latitude to delegate tariff authority to the President, Congress is ultimately responsible for determining what tariff authorities the President should have and what limitations those authorities place on presidential discretion.
Congress may consider whether the President’s existing tariff authorities are adequate, inadequate, or overly broad. If Congress believes existing authorities are inadequate or insufficiently specific, it may consider legislation delegating additional authorities to the President. For example, one bill introduced in the 119th Congress would authorize the President to determine whether a foreign country imposes tariff rates or nontariff barriers that are significantly higher than those of the United States as to particular goods and, if so, to impose U.S. tariffs on those goods up to the rate applied by the foreign country.241 Congress could potentially also expand the President’s authority under existing authorities, such as by removing some of the above-described procedural requirements in various tariff statutes.]]
https://www.congress.gov/crs-product/R48435
Fr9m what a lawyer on a news station was saying, basically, If congress doesn’t object, the president is free to impose tariffs, beczuse presidential powers are extraordinary basically, (the word wasnt extraordinary, but something along those lines), but even if congress objects, the president doesn’t have to abide, but doing g so might set up impeachment threat.
““If congress were capable of doing their job they would have done this by now.””
Politicians are individuals and individuals are always asking, “what’s in it for me?” In that atmosphere who is going to take the lead, expend the energy and political capital to make the government actually work? I’m sure there are a few. But those people are probably ghosted by the rest because talking to them means the person talked to will need to actually do something that does not benefit them personally or professionally. So, why bother?
The final question here is whether the POTUS has the authority to declare a National Emergency or...
Whether such a declaration must be reviewed and approved by either Congress or the Courts.
We the People have vested such declarations in POTUS until such time the emergency is past.
Suck it!
“They’re uninterested in doing anything. Half of the Republicans seem to be Democrats.”
Many Republicans would be happy to let the Dems be in control and simply complain. Our politicians are human waste. Their interest is in getting re-elected and increasing personal wealth. I fear the next time Dems get control it won’t be good for America.
We shouldn’t be trading with China at all. Not one dollar>>> That action seems like it would be supported by the IEEPA actually. Just not tariffs.
The act gives the president the authority to declare a national emergency.Further the act gives congress the power of review and specifically gives Congress the power to terminate the emergency by joint resolution. Because Congress gave itself the power of review it has taken this power away from the judiciary.
[[According to the Congressional Research Service, there are six statutory provisions currently in place that control how the president and the executive branch can use tariffs. Three provisions require federal agency investigations before a tariff can be imposed. The other provisions do not require an investigation before actions are taken.
Section 232 of the Trade Expansion Act of 1962 has been used by the first and second Trump administrations for steel and aluminum imports. It authorizes the president to ask the Secretary of Commerce to determine if goods are being imported in manner that threatens national security. The secretary then reports back to the president if he has any affirmative findings. “Section 232 does not require the President to follow the Secretary’s recommendations but permits him to take alternative actions or no action,” the CRS says. Under Section 232, there is no maximum time limit on the president’s tariff actions.]]
[[Ultimately, Congress can limit or expand the presidential tariffs powers through legislation, but the CRS concludes that based on precedents dating back to the time of Chief Justice Marshall, judicial precedent “has given the President broad latitude to exercise his tariff authorities.”]]
https://constitutioncenter.org/blog/how-congress-delegates-its-tariff-powers-to-the-president
Manhattan Contrarian ping
I don’t see SCOTUS getting between Congress and POTUS and ruling that these are illegal. M2C. NAL.
Itt doesn’t even need to be a national emergency, the president is allowed to impose them if they are taking u fair advantage. He hasn’t used that privilege yet, but its there.
[[Section 122 of the Trade Act of 1974, which allows the president to enact temporary tariffs to address “large and serious United States balance-of-payments deficits” or certain other situations that present “fundamental international payments problems; and Section 338 of Tariff Act of 1930, which authorizes the president to enact “tariffs on articles produced by, or imported on the vessels of, foreign countries that discriminate against U.S. commerce in certain ways,” have not yet been used.]]
From link above
:: The act gives the president the authority to declare a national emergency. Further the act gives congress the power of review and specifically gives Congress the power to terminate the emergency by joint resolution ::
Let us now look at appropriate timing.
If it is a national emergency (according to POTUS), should we wait for Congress to agree or disagree?
Congress has already exposed itself to be self-serving and overly deliberative when it comes to making pseudo-political assessments such as this.
How long do we wait...and at what cost?
I question the standing of the plaintiffs to being this case in the first place. I bet the Supreme Court knocks it out on that basis. Or put differently and as someone else above said, they will realize that this battle is a political one between Congress and the Executive and refuse to enter the fray.
Yep. And what the lawyer was arguing was that since co guess is not acting to terminate the emergency declaration, that the tariffs stand. He was basically arguing that it is up to co guess, not the courts, to declare that the president didn’t have the right to declare an emergency. (From what I gathered listening to the lawyer- but probably I misunderstood it)
If Roberts can play semantics with the Obamacare “tax”, he can do the same with tariffs.
Ain’t that the truth! Lawyers all over the nation lambasted him for his ignorance when he explained his ruling. It was such a shameful act!
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