Court Strikes Down Tariffs

Many posts have dealt with tariffs and trade.

Conor Friedersdorf at The Atlantic:

The debate over President Donald Trump’s tariffs often focuses on whether they are prudent. Defenders insist that Trump’s tariffs will help make America great again and boost national security. Critics counter that they’ll wreck the economy. But the strongest argument against the tariffs is actually that they are unlawful. Neither the Constitution nor any statute authorizes Trump to impose what he ordered.

Now, months after sticklers for the rule of law began making that argument, it has finally been vindicated: Yesterday, the United States Court of International Trade, the federal court with jurisdiction over civil actions related to tariffs, struck down almost all of Trump’s tariffs in a 49-page ruling. The decision includes a detailed discussion of the International Emergency Economic Powers Act, the 1977 law delegating increased power over trade to the president during national emergencies, which the White House had cited to support its moves. It concludes that the law does not authorize any of Trump’s tariff orders.

V.O.S. Selections, Inc. v. Trump

State of Oregon v. Trump

Underlying the issues in this case is the notion that “the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments.”  Federalist No. 48 (James Madison).  Because of the Constitution’s express allocation of the tariff power to Congress, see U.S. Const. art. I, § 8, cl. 1, we do not read IEEPA to delegate an unbounded tariff authority to the President.  We instead read IEEPA’s provisions to impose meaningful limits on any such authority it confers.  Two are relevant here.  First, § 1702’s delegation of a power to “regulate . . . importation,” read in light of its legislative history and Congress’s enactment of more narrow, non-emergency legislation, at the very least does not authorize the President to impose unbounded tariffs.  The Worldwide and Retaliatory Tariffs lack any identifiable limits and thus fall outside the scope of § 1702.  Second, IEEPA’s limited authorities may be exercised only to “deal with an unusual and extraordinary threat with respect to which a national emergency has been declared . . . and may not be exercised for any other purpose.”  50 U.S.C. § 1701(b) (emphasis added).  As the Trafficking Tariffs do not meet that condition, they fall outside the scope of § 1701.