After listening the Supreme Court’s oral argument Nov. 5 on whether President Donald Trump overstepped his emergency authority to impose tariffs, I am confident that the Court will rule against Trump. Under Article I, Section 8 of the Constitution, Congress, not the president, has the power to regulate tariffs unless in very specific instances it delegates exceptions for the president to do so.
As a former member of Congress protective of its powers under the Constitution, I will applaud this decision. I suspect many Republican members of Congress share my opinion.
For some time I have been concerned about encroachment of presidential power through executive orders and executive agencies making law. A previous essay of mine on why President Joe Biden’s college loan forgiveness executive order would be struck down by the Supreme Court (“Biden’s College Loan Forgiveness is Unfair, Unconstitutional and Unwise”, johnkassnews.com, Sept. 25, 2022) addressed this concern.
Trump chose to justify his tariffs under the International Emergency Economic powers Act, or IEEPA. This 1977 law allows the president to “regulate” economic transactions during a national emergency. It had never been invoked to impose tariffs on foreign imports until Trump did so. Trump deemed the country’s trade deficits and the flow of migrants and fentanyl from Mexico, Canada and China as national emergencies.
IEEPA was actually passed to restrict presidential power under the earlier Trading With the Enemy Act of 1917. It became law to restrict presidents to a more limited and defined set of emergency economic tools to be used during real foreign national emergencies rather than as a standing authority to regulate trade. As Justice Amy Coney Barrett stated during argument, not once did IEEPA mention tariffs: “Can you point to any other place in the code or any time in history where “regulate importation’ has been used to confer tariff-imposing authority?”
Along these skeptical lines, Chief Justice John Roberts said the administration’s justification “is being used for the power to impose tariffs on any product, from any country, for any amount, for any length of time,” which he called a “major authority.”
The court used the “major questions doctrine” to smack down climate regulation from Biden’s Environmental Protection Agency, Biden’s vaccine mandate for large businesses, and his $500 billion student loan forgiveness program. This doctrine, pushed especially by Justice Brett Kavanaugh, is a principle that courts will not allow federal agencies to exercise authority over matters of “vast economic and political importance” unless Congress has explicitly granted that power in a clear and specific statute.
Trump himself has stated the importance and far-reaching consequences of this decision. Lawyers for the small-business plaintiffs agree for a different reason. They quoted one of Justice Neil Gorsuch’s previous opinion on climate change, “Absent vigilance under the major questions doctrine the legislation (in this case IEEPA) would risk becoming nothing more than the will of the current President.”
Justice Samuel Alito even joked with Neal Kaytal, a former solicitor general under President Barack Obama and now a plaintiff’s attorney in this case, “I find it interesting to hear you make the nondelegation argument, Mr. Kaytal. I wonder if you ever thought that your legacy as a constitutional advocate would be the man who revived the nondelegation argument!”
To which Kaytal replied, “Heck, yes, Justice Alito. I think Justice Gorsuch nailed it on the head when saying that when you are dealing with a statute that — that is this open-ended, unlike anything we’ve ever seen to give the president this kind of power, yes, this isn’t just delegation running riot: This is delegation that’s a legislative abrogation!”
This is not to say that our tariff policies don’t need changing. Trump has pointed out since the 1980s how other countries such as China impose tariffs and obstacles on our exports while expecting low tariffs on their imports to the United States. Our balance of trade deficits have been a serious problem for 30-plus years.
If the Supreme Court rules against the president on IEEPA, doesn’t mean that Trump doesn’t have a point or other options. He could use Section 122 of the Trade Act to deal with tariff increases but they would be limited to 15% rates for 150 days that then must be renewed by Congress.
However, Trump wanted to unilaterally impose tariffs whenever he wanted, for whatever reasons he wanted, without any constraints so he overreached with IEEPA. Thankfully, the Supreme Court is about to say, “No.”
Barrett did mention that paying back the collected tariffs will be a “mess” totaling hundreds of billions of dollars. I wouldn’t be surprised if the court avoids this by making the decision prospective, not retrospective for tariffs already collected.
Now, if only Congress would get past gridlock and work in a bipartisan fashion with the president to fix our trade laws and balance of trade deficit.
Dr. Greg Ganske is a retired reconstructive surgeon who cared for women with breast cancer, children with birth defects, farmers with hand injuries, and burn and trauma victims. He served Iowa in Congress from 1995 to 2003.
This article originally appeared on Des Moines Register: In tariffs case, the Supreme Court should put brakes on presidential power | Opinion
Reporting by Greg Ganske / Des Moines Register
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