You have probably seen that a three judge panel of the U.S. Court of International Trade has ruled that Trump’s tariffs are unlawful. So done and done, subject to appeal of course. Trump imposed the tariffs under a 1977 law called the International Emergency Economic Powers Act. The three judge panel said he greatly exceeded his powers. That means that most of the tariffs which have dominated American and even global politics for the last couple months are out, subject to appeal. I need to dig a bit more into this but I believe some of the tariffs imposed on Canada and Mexico were under separate legal authorities in which the President has clearer power. So I don’t know precisely which is which. But the gist is that most of the tariffs are out and all the “reciprocal” ones.
So is this all over? I suspect it may be. There are laws which grant the President the power to impose tariffs for specific reasons. But this particular law doesn’t even mention tariffs as something the President can do under this act. So I don’t think as a legal matter it’s a terribly close call. When it comes to SCOTUS, we might also see what we might call the “Powell Doctrine” come into play. Not the 80s-era one but the one Roberts employed a few days ago when he said that the unitary power of the executive means independent agencies don’t exist — except for the Fed. Beyond the law itself, I don’t think this Court is impressed by Trump’s chaotic and impulsive tariffs. I suspect they’re as a group not wild about protectionism generally. They’re old school on those fronts. With independent agencies, they’re anti-regulation; pro-stable money supply. Remember too that these aren’t presidential powers. No one disputes that. These are purely on loan from Congress. So a lot of the executive authority stuff simply doesn’t apply.
I’m not saying SCOTUS will sustain this decision. Who knows? But I think there are a lot of reasons pointing in that direction.
