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.
The overall argument is does Congress have the authority to abrogate their plenary power to the executive branch at all.
Congress could also end all this by simply passing a joint resolution with a veto proof majority saying as sinply as all previous laws pertaining to tariffs are null and void with all such powers returned fully to Congress for a period ending Jan 21,2029 or forever its up to them.
It’s looking more like the appeals court gets off on being shot doun by supreme court they keep doing it.
“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?”
Congress has the power to remove judges who defy SCOTUS that is their job after all. It’s a political question not a statutory legal one. If Congress chooses to do nothing that is also their power. The people can vote them out next round if they want different outcomes.
POTUS is facing a hostile Congress they will remove him again its a political not a legal question as all impeachments are purely up to politics the USSC has zero say nor does any other court. It’s two houses , two votes that’s all that matters the rest is political theater.
Congress does not presently have to agree with the President. But to stop the emergency they need to pass a joint resolution. We can wait as long as Congress wants to take even if it takes forever. Congress not acting means the President can continue to act.
Our financial elite with the help of our big consultancies declared economic world war on us when they offshored our economy to the enormous profit of themselves and the enormous loss of the American productive classes.
Tariffs are noting but a tax on someone and that someone is almost always the consumer.
Dear wrong. Go read Ricardo on the theory of economic rents. We are taxing the enormous economic rents from offshoring our economy. We are taxing the excess profits thereon. They have no ability to raise domestic prices here in the US.
I love the sulphureous smell of free traitors in the morning because your so-called free trade ignores all of the necessary components for free market economics. The problem with you version of free trade is that it is all rigged.
muh pernt
[[Congress not acting means the President can continue to act.]]
That’s the way I understood the lawyer to mean.
“ 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.”
And I predict the Supreme Court will follow the principles it annunciated in Field v. Clark and J.W. Hampton. The Tarrifs will be upheld.
Ricky Ricardo? I didn’t know he was an economist as well as a band leader.
What would those necessary components of free market economics be that are being ignored?
Not worth the argument for me. Time will prove someone right. Nobody’s crystal ball is all that clear but the past I have experienced when steel tariffs were raised had nothing to do with economic rents, prices just went up across the board and it was the end user that paid the price.
SHut up you Marxist.
Remember the backstabbing performance of the GOP Congress in 2017...
The feckless GOP has one function (in their own minds):
Protect their long-term access to the financial security of being a congressperson, even if in the minority, over any responsibility to the GOP voters who sent them to DC...
Grow up and behave.
So are you CCP kiss ass also?
LOL!
You can’t argue the point without insults.
Behave.
Get to work.
Answer the question.
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