The debate over President Donald Trump’s tariffs often focuses on whether they are prudent. Defenders insist that Trump’s tariffs will help make America great again and boost national security. Critics counter that they’ll wreck the economy. But the strongest argument against the tariffs is actually that they are unlawful. Neither the Constitution nor any statute authorizes Trump to impose what he ordered.
Now, months after sticklers for the rule of law began making that argument, it has finally been vindicated: Yesterday, the United States Court of International Trade, the federal court with jurisdiction over civil actions related to tariffs, struck down almost all of Trump’s tariffs in a 49-page ruling. The decision includes a detailed discussion of the International Emergency Economic Powers Act, the 1977 law delegating increased power over trade to the president during national emergencies, which the White House had cited to support its moves. It concludes that the law does not authorize any of Trump’s tariff orders.
Administration officials quickly challenged the ruling’s legitimacy. “It is not for unelected judges to decide how to properly address a national emergency,” White House spokesperson Kush Desai said in a statement. “The judicial coup is out of control,” Deputy Chief of Staff Stephen Miller posted on social media. But their objections are dubious, not because the judiciary never overreaches, but because at least three features of this dispute make the argument for judicial overreach here especially weak.
[David Frum: The ultimate bait and switch of Trump’s tariffs]
First, the Constitution is clear: Article I delegates the tariff power to Congress, and Article II fails to vest that power in the presidency. So the Trump administration begins from a weak position. And the court’s ruling did not arrogate the tariff power to the judiciary, which might have warranted describing it as “a judicial coup.” It merely affirmed Congress’s power over tariffs. Americans need not fear a judicial dictatorship here. Congress can do whatever it likes. Indeed, it could pass a law reinstating all of Trump’s tariffs today without violating the court’s ruling. But Congress is extremely unlikely to do so, in part because Trump’s tariff policy clearly lacks public support; for example, a recent poll found that 63 percent of Americans disapprove of it.
Second, the plaintiffs in this particular lawsuit include the states of Colorado, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New Mexico, New York, and Vermont––all democratically accountable entities in a federal system where states are meant to act as a check on unlawful exercises of federal power. All of those states asked the court to rule in this manner to vindicate their rights under the law. As Oregon’s attorney general put it, “We brought this case because the Constitution doesn’t give any president unchecked authority to upend the economy.” States controlled by both Republicans and Democrats routinely file lawsuits asking the judiciary to strike down purportedly unlawful actions by the president. There is bipartisan consensus that such judicial review is legitimate, not couplike, and such rulings have constrained presidents from both parties.
[Rogé Karma: The impossible plight of the pro-tariff liberals]
Third, when Congress created the Court of International Trade and later defined its jurisdiction, its precise intent was to create an arm of the judiciary that would exercise authority over trade disputes. Congress made a deliberate choice to alter an earlier law vesting that power in the Treasury Department, under the executive branch, and deliberately vested it in a court instead. To quote from the 1980 law that defined its powers, “The Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for tariffs.” Policing whether or not a tariff complies with the law and the Constitution is central, not peripheral, to the court’s ambit.
If the Trump administration kept its criticism of the judiciary to edge cases, where there is real doubt about how the Constitution separates powers, it could plausibly claim to be engaged in the sort of dispute that is inevitable when branches of the federal government are checking one another as intended. That it seeks to delegitimize even this ruling suggests contempt for any check on the power of the presidency, not principled opposition to judicial overreach.
The Constitution explicitly vests the tariff power in Congress, and wisely so: Empowering one person to impose taxes and pick economic winners and losers tends toward corruption and dictatorship. Going forward, Congress should set tariff policy itself, and impeach any president who tries to usurp its authority.
Article originally published at The Atlantic
