Ridiculous. And nobody but you is arguing this. There are several laws that give the president the power to impose tariffs under various conditions
This is from today's Wall Street Journal.
President Trump delayed his Mexico-Canada tariffs again on Thursday—this time for another month. He’s treating the North American economy as a personal plaything, as markets gyrate with each presidential whim. It’s doubtful Mr. Trump even has the power to impose these tariffs, and we hope his afflatus gets a legal challenge.
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The Constitution gives power over trade to Congress, which for most of U.S. history wrote tariff law. That changed after the catastrophe of the 1930 Smoot-Hawley tariff, as Congress said stop us before we kill the economy again and ceded authority to the President to negotiate bilateral trade deals. It ceded more power after World War II.
The President now has the explicit power to restrict imports, but only for specific reasons. The President may impose tariffs on imports that threaten national security (Section 232) or in response to “large and serious” balance-of-payments deficits (Sec. 122), a surge of imports that harms U.S. industry (Sec. 201), and discriminatory trade practices (Sec. 301).
During his first term, Mr. Trump used Section 232 to impose tariffs on steel and aluminum and 301 on goods from China. Mr. Trump’s executive orders imposing 25% across-the-board tariffs on Canada and Mexico and 10% (now 20%) on China instead invoke the 1977 International Emergency Economic Powers Act (IEEPA), which gives the President authority to address an “unusual and extraordinary threat” if he declares a national emergency. Mr. Trump deems fentanyl and other drugs such an emergency.
IEEPA’s language is intentionally broad to give the President latitude to address wide-ranging threats. But Mr. Trump’s tariffs arguably constitute a “‘fundamental revision of the statute, changing it from [one sort of] scheme of . . . regulation’ into an entirely different kind,” to quote the Supreme Court’s
West Virginia v. EPA precedent distilling its major questions doctrine.
Under that ruling, Congress must expressly authorize economically and politically significant executive actions, which Mr. Trump’s tariffs undeniably are. Whether fentanyl is an unusual and extraordinary threat is debatable, however, since drugs have been pouring across the borders for decades.
The bigger problem is that IEEPA doesn’t clearly authorize tariffs. The law lets the President investigate, block, prohibit or regulate any “importation or exportation” or financial transaction involving “property in which any foreign country or a national” has an interest or “any property, subject to the jurisdiction of the United States.”
Presidents have used the law to freeze assets of foreign governments and nationals, restrict U.S. companies from doing business with them, limit export of technologies and ban imports from adversaries. In March 2022 President Biden used the law to ban imports of Russian energy, seafood and alcoholic beverages—but notably not to impose tariffs.
In April 2022, Congress gave the President authority to raise tariffs on Russia, and Mr. Biden later did. This suggests that neither Congress nor Mr. Biden believed IEEPA provided tariff authority. No President has used IEEPA to impose tariffs. The High Court has said that a “lack of historical precedent” is a “telling indication” that a broad exercise of power is illegal.
It’s true Richard Nixon used a precursor to IEEPA to impose an across-the-board 10% tariff in 1971 to address a growing trade deficit. A lower court ruled the tariff exceeded his authority by letting him “determine and fix rates of duty at will” without Congressional permission. An appeals court upheld the tariff because it “bore an eminently reasonable relationship to the emergency confronted.”
Mr. Trump’s tariff doesn’t appear reasonably related to the fentanyl emergency. And Congress seemed to dislike Nixon’s use of emergency powers to deal with trade issues since three years later it gave the President limited authority to impose tariffs. Mr. Trump may have shunned those authorities because he wants carte blanche to impose tariffs.
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Mr. Trump’s tariffs recall Mr. Biden’s use of emergency power for his Covid vaccine mandate, eviction moratorium and student loan forgiveness. The Court blocked all three under its major questions doctrine, which Justice Neil Gorsuch called “a vital check on expansive and aggressive assertions of executive authority.”
Presidents of both parties are now declaring everything to be an emergency to achieve their policy goals without having to deal with a frustrating Congress. If Mr. Trump succeeds in unilaterally imposing tariffs as he sees fit, a future Democratic President will use “emergency” power for climate change and much more. Mr. Trump’s order needs a legal challenge.
