A ruling in Trump’s favor would be a more dramatic expansion of presidential power than all the previous extra grants of power the Supreme Court has given him
Today’s Supreme Court oral arguments on several of the cases challenging President Trump’s authority to impose his broadest tariffs using the International Emergency Economic Powers Act IEEPA will provide the first hints about the Justices’ thinking. A ruling in Trump’s favor would be a more dramatic expansion of presidential power than all the previous extra grants of power the Supreme Court has given Trump.
As a practical matter, the high court will decide whether the April 2 “Reciprocal Tariffs” applying to most countries at rates ranging from 10 to 50% and the “Trafficking Tariffs” applying to China (30%) and to non-U.S.-Mexico-Canada-Agreement-compliant goods from Canada (35%) and Mexico (25%) can continue. The core legal issues are whether IEEPA provides authority to impose these tariffs and, if it does, whether this delegation of Congress’ constitutional tariff authority is permissible.
Counterintuitively, it actually may not mean much for businesses, workers, consumers, or other nations if the Court rules against the tariffs. The administration has made clear that it favors high tariffs and can use other statutes to impose them. Trade laws such as Sections 122, 301 and 232 have more limits and/or procedural steps than IEEPA, but could result in similar ends.
But a Supreme Court decision that IEEPA allows a president to unilaterally impose tariffs—of any amount, on any and all countries, and for any time period would greatly boost presidential powers in a way that would undermine democratic accountability in the U.S. governance system.
Even with the looming possibility that Trump’s tariff power could be limited, with every court hearing the case ruling against, we have witnessed some of the implications. A president with unilateral tariff powers can dole out mighty punishment and favor to businesses, political supplicants, and foreign nations alike. A president inclined to exercise such power without care and/or based on corruption, whim, pettiness, or political sycophancy can cause real uncertainty in the domestic and global economy in ways that undermine the national interest.
Why? Because a ruling that IEEPA allows Trump’s tariff fiat would demolish one of the starkest checks and balances in the U.S. Constitution. Article I, Section 8 contains two separate grants of exclusive congressional authority over trade: “The Congress shall have Power To lay and collect Taxes, Duties…” and “to regulate Commerce with foreign Nations…”
It was not an accident that the Founders granted sole control over the substance of trade policy to Congress. A trigger for the Revolutionary War and U.S. independence from England was the unilateral imposition of tariffs on the colonies by King George to raise funds for his European wars. The Boston Tea Party was our nation’s first trade war!
Having tariff and trade policy not set by one person—the president—but rather by a group elected by geographically distinct blocs of Americans—Congress—reflects the enormous impact international commercial policy has on a nation and the power associated with setting it.
It is worth noting that I support using tariffs as part of industrial policy to rebuild U.S. domestic manufacturing capacity. I also think the enormous U.S. global trade deficit is a serious problem that must be remedied along with the general state of imbalance in global trade flows. So, my take on the threats posed by U.S. presidents having unbound, unilateral tariff authority is coming from a different place than defenders of our failed trade policy who despise all tariffs.
Presidents have tried to persuade Congress to delegate ever-broader “trade” authority for a long time, as my 2013 book, The Rise and Fall of Fast Track Trade Authority, explains. Trump’s current presumption of unbound tariff policy under IEEPA is on par with the moves of the previously greatest trade-authority-grabbing president, Richard Nixon. Nixon tried (and failed) to get Congress to grant him authority to simply proclaim changes to U.S. law to conform it with the terms of trade pacts that a president would be authorized to sign and enter into without specific congressional approval!
Whether or not IEEPA could provide constitutionally valid authority for presidential tariff use—which would be premised on textual and case law analysis—how this administration has used its claimed IEEPA authority certainly cannot be constitutional. The technical basis for such a ruling likely would be the Nondelegation Doctrine, which holds Congress cannot delegate a core constitutional authority without bounds. More prosaically, vaporizing Congress’s constitutional tariff authority is not allowed. Soon we will learn if the Court agrees.