|
The Supreme Court heard arguments for nearly three hours on President Trump’s authority to overhaul the tariff system of the United States through an emergency statute. Trump decided at the last minute not to show up to the hearing, and it’s a good thing he did, because he would have wanted to change the channel.
Most of the conservative justices seemed pretty skeptical of the argument that the International Economic Emergency Powers Act (IEEPA), which allows a president in an emergency to “regulate importation and exportation,” confers worldwide, unlimited tariff authority that could raise as much as $4 trillion over a decade, per the government’s brief. Solicitor General D. John Sauer characterized these as “regulatory tariffs” and not taxes, designed to change consumer behavior by buying domestically and as leverage on other countries for purposes of negotiation. The justices weren’t totally buying that.
“Can you point to any place in the [U.S.] Code where that phrase [“regulate importation”] connotes tariff authority?” asked Justice Amy Coney Barrett. Sauer cited the Trading With the Enemy Act, but that was in a wartime context and not the government’s main argument. He mentioned Section 232 of the Trade Expansion Act of 1962, but that says “adjust imports by any means necessary,” and the context is clearly about tariffs.
Justice Neil Gorsuch was even more brutal. He began by asking if Congress could delegate the power to regulate commerce with foreign nations or impose duties; these of course are verbatim pulls from Article I of the Constitution, which explicitly confers those powers on Congress. Sauer said he didn’t think so, but Gorsuch emphasized that this is the logic of the government’s view. “You are saying that the president has inherent authority of all foreign affairs. So what if Congress says we’re done with legislating and hands it all off to the president? What stops Congress?”
Essentially, Gorsuch was saying that a German-style Enabling Act wasn’t permissible under our Constitution. And Sauer conceded the point.
Gorsuch added that presidents would have the upper hand in keeping delegated powers if the courts allowed it. Only legislation they could veto could stop them. “It’s a one-way ratchet toward the gradual accretion of power and away from the people’s representatives,” Gorsuch said. Justice Barrett agreed with this.
Sauer cited the 2023 shuttering of the COVID emergency, but a relatively controlled infectious disease is far different from unilateral tariff power at the president’s whim, which as Justice Sonia Sotomayor said, could even include an advertisement by the province of Ontario, Canada, that he doesn’t like. |
