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.
“...Our politicians are human waste...”
Nothing but lawyers that couldn’t legally make it in lawyerdom....
Going into politics was their only method where they could legally steal other peoples’ money.
I think the tariffs have generally been negotiated by presidents in “trade deals” that were then submitted and approved by Congress.
I this case Trump is calling the trade situation a national emergency and using a national emergency powers act to set tariffs directly, without Congress.
It will be interesting to see the Trump’s lawyers arguments at SCOTUS.
I think the difficulty will be that while the trade deficit may be a “national security” issue, it has been at a deficit state for decades, and so what will the argument be for how it is now an emergency.
As the ultimate superior branch. Congress can void any emergency declaration. They can do it by a veto proof law or impeachment and removal. The courts have no role in a national emergency.
At least that’s how it was in old America under the original constitution.
Today it’s whatever some reason judge in San Francisco says.
POTUS is going to have to **** or get off the pot, and soon. Appealing to SCOTUS wastes time, and is ineffective against lower courts who don’t feel like abiding by their rulings.
What else would you expect from a bunch of America haters trying to keep American bucks rolling into foreign treasuries?
Article I, Section 8 grants Congress plenary powers over tariffs. Congress has a number of times delegated its statutory authority to the executive. At issue is 1 was that constitutional in the first place and 2 how much have the delegated , for how long and under what circumstances. The US Supreme Court has to weigh in is the lower courts ruling stands its stayed right now specifically to let the USSC time to weigh in.
I predict it will be 9-0 that Congress and only Congress can dictate tariffs unless they specifically and with much limits allow the executive temporarily to impose them until such time as a full vote in both houses can be taken. The power of the purse is solely in congressional hands they should even be allowed to delegate it away our founders specifically put it in a full article of the constitution for a reason.
The second POTUS defies a court ruling , he will be impeached for it and with the RINOs in the Senate they will gladly convict and remove him, you can take that to the bank. His only recourse is to get the USSC to rule in his favor every time a lower court ruling is made. Don’t think for one second he is not the most at risk POTUS for impeachment and removal in modern history he has more enemies than friends in DC and they only need 60 to remove him. The USSC should rule that lower courts cannot issue national injunctions period full.stop. They almost did just that but chickened out. Standing policy is conflicting lower court rulings stand in their districts until USSC decides who is right.
Never forget impeachment is a political process there is no legal recourse its two votes and both are political votes having zero to do with statutory law.
This entire conversation betrays the fact that what is needed (and lacking) is a radcal, militant core of students, billionaires, and intellectuals hellbent on destroying the status quo: By any means necessary……Where is this army?
:: As the ultimate superior branch. Congress can void any emergency declaration. ::
Part A is where this gets “dicey”.
Part B above is a matter of timing and ONLY exists post-declaration.
The Constitution does not recognize an “ultimate, superior” branch.
Just co-equal branches...Executive ‘executes’, Legislative ‘legislates’ and Judicial dispenses ‘just considerations’.
None of them work within a vacuum and properly interact with each other to ‘preserve and protect’ the Constitution [from enemies, F&D]
Here we are presented with a query: Are all 3 co-equal branches of the government established to provide for the will of the people?
Are the Article III courts extracted and separate from the will of the people and only exist to keep rule over the Article I and Article II branches?
Is that what was intended?
Marbury v Madison is in play.
The Judicial Coup Branch always finds people with standing.
Items related to stolen elections, F the People.
Maybe if they were to declare a ‘trade war’, then we’d get to scramble the fighter tariffs..
Article III courts judges can be impeached and removed by the legislature who is the voice of the people. We are a Republic, those representatives in the houses are the voice of the people.
The founding fathers made the legislature the most powerful branch for a reason they are the voice of the people who elected them. They hold the power to remove anyone on the other two branches thus preserving the people’s will. They also have the power to remove members of their own house as well again directly accountability to their district or state’s people. The power of the purse was given the most directly accountable branch again for good reason.
It’s a myth the branches are co equals Congress is by far the superior branch as it was intended to be.
Thank you...
“”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.””
Their interest is self-interest. The decline of America is due to their corruption and betrayal of their oath to uphold the Constitution. And your fear is well-placed. The radical leftist Democrats will be out for blood, literally, the next time they seize control. And they will be in control again. God help us when that happens. If you think the OBiden years were bad.... you ain’t seen nothin yet.
Which is ‘why’ I keep trying to drill into thick skulls here... be careful what you wish for re: more Big Gov restrictions. Because the next time the Dems are in control... you will undoubtedly get it... in spades, good & plenty... & hard.
To remove and balance precocious trade barriers is a great objective. Canada and their barriers to dairy products is one example. To expect to balance trade with a laundry list of countries that don’t need quantities of stuff we make while we want quantities of stuff they do make is unrealistic. Trump has turned trade upside down unnecessarily and unrealistically in many but not all cases.
We have yet to see the negative impact of his actions but they are showing up and will grow. The cost of goods from protected industries can only go up. Fresh vegetables are an example of how costs to us are raised capriciously and suddenly. US producers can’t compete with Mexican costs or they would have already. Tariffs are noting but a tax on someone and that someone is almost always the consumer. Worse than that though, tariffs encourage non-competitive suppliers to raise prices and become even less efficient and enforcing the consumer to pay the price for that.
I hope this across the board, wild and woolly adventure on tariffs is an argument Trump loses in whole but not in part. We do need protection and counter protection but not on a world trade war scale.
[Article] "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."[Bob434] 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.]]
https://www.govinfo.gov/content/pkg/COMPS-10384/pdf/COMPS-10384.pdf<./a>
SEC. 122. BALANCE-OF-PAYMENTS AUTHORITY.(a) Whenever fundamental international payments problems require special import measures to restrict imports—
(1) to deal with large and serious United States balance-of-payments deficits,
(2) to prevent an imminent and significant depreciation of the dollar in foreign exchange markets, or
(3) to cooperate with other countries in correcting an international balance-of-payments disequilibrium,
the President shall proclaim, for a period not exceeding 150 days (unless such period is extended by Act of Congress)—
(A) a temporary import surcharge, not to exceed 15 percent ad valorem, in the form of duties (in addition to those already imposed, if any) on articles imported into the United States;
[...]
It's a tax only upon the importer, and this who choose to buy the imported product that have tariffs levied against it. Tariffs have had zero impact upon me, since I buy American products.
It's not that I dispute that statement at all -- it's that lower courts and judges routinely defy SCOTUS whenever they feel like it. What is to be done in those instances?
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