Why Trump is likely to lose the big tariff cases when they get to the Supreme Court
Hint: Because his arguments are weak. Next hint: If we wants to start winning, he needs stronger and more consistent arguments.
Two courts now have ruled that President Trump did not have authority to impose new tariffs on foreign imports under the International Economic Emergency Powers Act of 1977 (IEEPA). His Justice Department promptly announced an appeal. One court, the Federal Circuit, granted an administrative stay and ordered expedited briefing.
As Prof. Michael McConnell of Stanford Law School has noted, the tariff litigation is shaping up as the biggest separation of powers controversy since the steel seizure cases of 1952.
Trump is likely to lose in the Supreme Court. In my opinion, he will lose unanimously. He’ll lose for the reason most losing litigants come up on the short end: It’s not the judges. It’s the law.
Prof. McConnell, a former judge on the US Court of Appeals for the Tenth Circuit, explains why in reasoning I’m going to quote extensively because I can’t improve on it. I pass his remarks along courtesy of my friend Prof. Eugene Volokh, writing on the libertarian-leaning Volokh Conspiracy.
The two [lower] courts both concluded that the President has no power under IEEPA to impose tariffs in response to balance of trade problems, and one court ruled, additionally, that President Trump lacked power to imposed tariffs in response to fentanyl trafficking. (For the remainder of this post I will discuss only the former holding.) It is important to stress that the decisions were not based on any criticism of the President's reasons for imposing the tariffs, but went to the existence of a power to do so.
This is a key point, one Mr. Trump would do well to take to heart. It’s not about him personally or agreement or disagreement with his tariff policy. It’s about the legality of the means by which he chose to impose it.
The Court of International Trade (CIT) emphasized the relation between IEEPA and the Trade Act of 1974, holding that the specific procedures and substantive limitations contained in the latter supersede any more general emergency authority under the former. The District Court for the District of Columbia (Judge Contreras) emphasized that IEEPA's delegation of power to "regulate" imports does not include a power to tax imports. The two lines of argument are…compatible, but not identical.
The courts differed as to which court has jurisdiction. Both arguments are reasonable, though both cannot be correct. This does not matter for resolution of [the substantive] controversy, however, because the two courts came to the same conclusion on the merits. Both cases are headed for the Supreme Court. Regardless of which trial court had jurisdiction, the Supreme Court will make the final decision.
Unless DOJ can come up with something better than it has yet, it’s in for a rough day (emphasis added):
In its application to the Federal Circuit for a stay, Justice Department lawyers claimed that the CIT decision is "rife with legal errors," but has not said what they are. Perhaps the government will come up with persuasive arguments in its briefs in the Federal Circuit on June 9. As of now, however, the essential points in the courts' analysis are largely unrefuted. IEEPA grants various emergency economic powers, but makes no mention of tariffs, and has never before been used to impose tariffs.
I did a lot of litigating for the Department. I don’t think I ever let a brief leave the building without some kind of plausible refutation of the other side’s argument.
Interpreting it as a broad power to impose tariffs whenever the President declares an "emergency" would implicitly repeal the several statutes in which Congress did grant tariff authority, subject to procedural, substantive, and temporal limits not satisfied here.
There is a political slant behind all of this, obviously, but the Court cannot let that affect its decision and is very unlikely to do so.
I am not one to assume that federal judges vote according to their political loyalties, but even if they did, the politics here do not favor the Administration [at the court of appeals level]. The CIT panel, made up of one Reagan appointee, one Obama appointee, and one Trump appointee, was unanimous. This suggests that the challengers' arguments have bipartisan force. Both appellate courts to which the cases are headed—the Federal Circuit and the D.C. Circuit—have substantial majorities of appointees of Democratic presidents. To the extent that is relevant, it is not a favorable indication for the Administration.
It won’t get any better at SCOTUS. Prof. McConnell delivers the punch line. Put less diplomatically, it would read: WAKE UP.
[T]he arguments of the challengers [to Trump’s tariffs and the means by which they were imposed] are squarely based on jurisprudential principles championed by the more conservative members of the Supreme Court: concern about excessive delegation, the major questions doctrine, and a formalist approach to separation of powers. As the CIT court stated, "Both the nondelegation and the major questions doctrines … indicate that an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government." These are the very types of argument the Roberts Court used to strike down Biden Administration initiatives such as student loan forgiveness, the covid-era eviction moratorium, mandatory vaccination, and expansive interpretation of the Clean Air Act to cover climate change regulations. Even if the Republican-appointed Justices were inclined to favor President Trump (which I do not think), it would be difficult for them to explain why the arguments that were fatal to Biden overreach do not apply with equal force to the tariff cases.
When you make argument A to the Court on Monday, you can’t come back on Tuesday and make argument not-A. This is not just because you’ll lose, although that too. It’s because the Administration simply must maintain its credibility and its institutional integrity or its going to lose a lot more than this case.
Justice Department lawyers have not attempted to claim any free-standing constitutional authority for the President to impose taxes—which would be difficult in light of the explicit grant of this power to Congress in Article I, Section 8—but President Trump himself has done so. On Truth Social, the President scoffed at the notion that the power to impose tariffs should rest with the legislative branch. "In other words, hundreds of politicians would sit around D.C. for weeks, and even months, trying to come to a conclusion as to what to charge other Countries that are treating us unfairly," he wrote.
There are two words for “hundreds of politicians [sitting] around D.C. for weeks, and even months, trying to come to a conclusion…” The words are, “drafting legislation.” The Framers were well aware this this process would be drawn out and frustrating and full of loud-mouthed posturing. That’s exactly what they intended as part of creating a check on the executive branch.
Of course, despite what you read in the MSM, Trump is hardly the first President to chafe at this and try to evade it. But he is, in my opinion, one of the most impulsive and least careful, and he’ll wind up paying a needlessly high price for it.
[T]he Founders intentionally vested "hundreds of politicians,"…with the power to impose taxes, including tariffs. The idea that taxation could be a unilateral executive power would have been anathema…And although the President has substantial independent authority in the field of foreign affairs, the Founders gave Congress important foreign policy powers as well, including the power to regulate trade with foreign nations. Congress may delegate tariff-setting power to the executive, but it must do so explicitly, and only subject to an "intelligible principle" that guides and limits presidential authority.
Again, Trump and his allies have made these same foundational arguments in many earlier cases. They were right to do it and have had a good deal of success. The President’s decision to reverse course now — if it was what could seriously be called a deliberated “decision,” which I doubt — will turn out to be a needless loss.
I state again as I have so many times here that it is a crying shame and a terrible pity that the first president willing to challenge these things that upset us so much is so undisciplined, so unlearned, so unwilling to defer to the judgment of wise people and so generally reckles sin his language and actions. I wish Ron DeSantis was president.
I love me some Ron DeSantis, but what would Ron DeSantis have done differently? He has never been afraid to challenge the conventional wisdom of Florida's courts and federal courts (the so-called "don't say gay bill").
I have read many analyses of why Trump's tariff gambit was legally questionable (and this is the clearest), but I have yet to read a single, practical, clear alternative plan of action from a conservative for breaking the stranglehold that China has on our supply chain for critical supplies and materials. The US cannot fight a war with China, Russia or its allies without an interruptible supply chain for metals, semiconductors, energy and pharmaceuticals - and yet the CCP has veto power over three of these four.
Simply arguing that Congress has the power is kind of lame, since Congress has delegated so much of its power to the executive branch and quasi-executive agencies so they can avoid tough votes that might cost them elections... let alone the fact that half of Congress is controlled by an anti-American party.
If Bill is legally correct, it doesn't bode well for the country, since the modern Congress is incapable of even passing a yearly budget. Ask Congress to tie its shoes, they will muck it up.
When I listen to lawyers, what I hear is that the President is powerless to stop the CCP from flooding our country with fentanyl - a sort of modern, inverse Boxer Rebellion - and I also hear that the current President is powerless to deport 10M people whom the former President allowed to enter the country simply by ignoring existing law. POTUS may as well stick to making speeches and cutting ribbons.
As Bill points out, Trump is not the first President who has chafed at these limits. Since the creation of the administrative state and the modern judiciary, every reformist President has.
Trump (and Stephen Miller) no doubt have a list of legal approaches to deport illegal immigrants and impose tariffs on China, which has ignored the terms of existing trade agreements for three decades.
Put yourself in the shoes of a post-pandemic President who knows that if we do not manufacture certain things at home, the US cannot survive as a world power. What's the best plan? My guess is that there are many plans, and this is one of them.
Action provokes action, words provokes words.
George Will used to argue that prosectors are "athletes of the law" - pushing the law to its limits in order to lock up people they believe to be criminals. Perhaps now it is the President who is the athlete of the law, trying to find ways to do what must be done for the US to survive - not in decades, but in a few years.