Dem
47
GOP
53
On Friday, the U.S. Court of Appeals for the Federal Circuit ruled 7-4 that Donald Trump has no authority to levy tariffs under the statute he claims gives him the power to do that (IEEPA, the International Emergency Economic Powers Act). No previous president has ever claimed that authority. That law does give the president some special powers during an emergency, but none of the powers include the power to impose tariffs, duties, or any taxes.
In fact, The Constitution specifically gives the Legislative Branch, not the Executive Branch, the power to levy tariffs and impose taxes. It can delegate some power to the president if it wants to, but the court ruled that the specific statute Trump used does not delegate that power. The ruling does not take effect until Oct. 14 to give the administration time to appeal to the Supreme Court. AG Pam Bondi has already said she will do so.
In a posting to his boutique social media site, Trump said "If allowed to stand, this Decision would literally destroy the United States of America." Gee, for 249 years everyone agreed that Congress has the exclusive power to levy tariffs. How come reaffirmation of that one line in Art. I of the Constitution will destroy the country? Trump should have seen this coming since, in May, a federal trade court said the same thing.
The ruling does not affect some tariffs on steel, aluminum, copper, and cars, since they were levied based on a different law that was not in play in this case. Of course, they could be struck down in future cases.
When the Supreme Court gets the case, it will have to make one of the most difficult decisions since Dred Scott: Should it obey the Constitution or should it obey Donald Trump? In the event it finds for the Constitution, it will put a big crimp in Trump's style. He won't be able to bully other countries and bend them to his will using tariffs, his favorite tool. He's not going to like that. At the very least, he will have to refund the tariffs the plaintiffs already paid and may have to refund the tariffs that were paid by businesses that were not parties to the case. He really wouldn't like that.
His next move could be to try to impose tariffs using the Trade Act of 1974, but that law restricts tariffs to 15% and they expire after 150 days. Also, they can be imposed only on countries with which the U.S. runs big trade deficits. Another option would be the Trade Expansion Act of 1962, but that requires a Commerce Dept. investigation first.
In a pinch, Trump could actually follow the Constitution and ask Congress to impose the tariffs he wants. If it did, there would be no question about their legality. The problem there is the tiny majority the Republicans have in the House and the fact that many House members believe in free trade, so the votes wouldn't be there.
A lot of the blame here goes to Congress. Why did it ever cede any tariff authority to the president in the first place? It is one thing to give the president emergency powers if the country is attacked or invaded, but a trade imbalance doesn't just sneak up on you, like Pearl Harbor. There is plenty of warning and plenty of time for Congress to act itself. (V)