Drain the Swamp

A Federal Court Reins in Trump’s Trade Power Grab

That’s not how it works. That’s not how any of this works.

I have to admit I underestimated the potential for the lawsuit challenging Donald Trump’s tariffs as unconstitutional.

On the one hand, I knew that Article I, Section 8 of the Constitution gives Congress, not the executive, the power “to lay and collect taxes, duties, imposts and excises.” On the other hand, I knew that Congress has a long history of sloughing off that power to the executive in an attempt to atone for the disaster of Smoot-Hawley.

But it turns out I was slightly too harsh on Congress. Yes, they gave away some control of tariffs to the president—but not nearly as much as Trump was claiming.

Last week, the Court of International Trade, the federal court that deals specifically with trade issues, ruled clearly and forcefully to strike down Trump’s tariffs.

In its ruling, a three-judge panel on the Court of International Trade said that the International Emergency Economic Powers Act, which Trump invoked to impose the tariffs, does not authorize a president to levy universal duties on imports.

“The Worldwide and Retaliatory Tariff Orders exceed any authority granted to the President by IEEPA to regulate importation by means of tariffs,” the judges wrote.

And separate, specific tariffs on Canada, Mexico, and China related to drug trafficking “fail because they do not deal with the threats set forth in those orders,” the panel wrote.

See a quick interview I did on this for The UnPopulist with Ilya Somin, a libertarian lawyer involved in the case.

Will Appeals Courts Affirm that Trump Is Abusing His Emergency Power by Imposing Sweeping Tariffs? A Conversation with Ilya Somin

Ilya describes the substance of the argument and also explains that the appeals court’s temporary pause of the ruling is purely administrative and pro forma and does not overrule the Court of International Trade on the substance.

This ruling is important for several reasons.