“The Constitution vests Congress, not the president, with the power to “lay and collect taxes, duties, imposts and excises.” Yet Trump has announced a dizzying array of “duties,” including punitive tariffs on Mexican and Canadian goods, a 25 percent tax on imported cars and car parts, tariffs on Chinese goods as high as 145 percent, and a 10 percent general tax on imports that may rise further based on supposedly “reciprocal” rates that make no sense.
These levies amount to the largest tax hike since 1993 and raise tariffs more than the notorious Smoot-Hawley Act of 1930, which deepened the Great Depression by setting off a trade war. The main authority that Trump cites for these far-reaching, commerce-disrupting, price-boosting tariffs is the International Emergency Economic Powers Act (IEEPA), a 1977 law that says nothing about tariffs.
The IEEPA—which was designed to constrain, not expand, the president’s powers—authorizes economic sanctions in response to “any unusual and extraordinary threat” to “the national security, foreign policy, or economy of the United States” after the president “declares a national emergency.” Although the law has been on the books for nearly half a century, no president until Trump has ever invoked it to impose a general tariff.
There are good reasons for that. The IEEPA mentions restrictions on transactions involving foreign-owned assets, but it never refers to taxes, tariffs, or any of their synonyms.”
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“The shortcut that Trump chose is inconsistent with the IEEPA in another crucial way. To justify his tariffs, he has cited two supposed “emergencies”: the influx of illicit fentanyl, which goes back a decade or more, and ongoing bilateral trade deficits, which Trump himself has been decrying since the 1980s.
Neither of those constitutes the sort of “unusual and extraordinary threat” that Congress contemplated. “A statute grounded in emergency cannot be stretched to support open-ended policymaking,” Calabresi et al. say, “especially where the alleged threat is neither imminent nor novel.”
Trump’s interpretation of the IEEPA amounts to an assault on the separation of powers. “If decades-old trade deficits now qualify as an ’emergency,'” Calabresi et al. warn, “then any President could invoke IEEPA at will to bypass Congress on matters of taxation, commerce, and industrial policy.”
That result, the brief argues, violates the “major questions” doctrine, which says any assertion of executive power involving matters of “vast political and economic consequence” must be based on “unmistakable legislative authority.” It also violates the “nondelegation” doctrine, which says Congress cannot surrender its legislative powers.”
“”Trivium Packaging, a manufacturer of steel and aluminum containers…has shelved any expansion plans in the US for now, and the only hiring happening at its five US plants is to fill in staff losses due to attrition” because of the increased cost of the imported metal on which it relies, according to an April 17 Bloomberg report. Trivium was just one of the companies profiled in the article that “are putting hiring and expansion plans on hold while they come up with short-term plans to cope with the tariffs.”
Consumers are also changing their behavior in response to the trade war. Americans initially flocked to buy cars to beat anticipated price hikes. Purchases slowed as the expected price increases materialized, spurring the Trump administration this week to carve out some tariff relief for automakers.
But the same factors driving concerns about prices and availability regarding cars affect every other industry. According to the Federal Reserve’s latest Beige Book report on economic conditions, “uncertainty around international trade policy was pervasive” and “non-auto consumer spending was lower overall.”
Additionally, “several Districts reported that firms were taking a wait-and-see approach to employment, pausing or slowing hiring until there is more clarity on economic conditions” and “there were scattered reports of firms preparing for layoffs.”
Importantly, added the Beige Book analysis, “firms reported adding tariff surcharges or shortening pricing horizons to account for uncertain trade policy. Most businesses expected to pass through additional costs to customers.”
Basically, businesses and consumers alike are slowing spending and taking a wait-and-see attitude as they anticipate higher prices and economic disruption from the Trump administration’s protectionist policies. Americans expect the tariffs to be painful and they’re not happy about it.”
“”Well, they did sign up for it, actually. And this is what I campaigned on,” Trump said of the tariffs during an interview with ABC News that aired Tuesday.”
“He’s insisting on one-on-one talks with China’s leader, Xi Jinping — and this has stifled other diplomatic efforts to halt the worsening trade war between the two global powers.
The president won’t authorize White House delegates to engage with Chinese officials in Beijing about a detente, according to two former senior State Department officials and an industry official, who were granted anonymity to discuss sensitive ongoing discussions. The Senate has yet to confirm an ambassador to China; Trump has not appointed anyone else to lead talks with Beijing; and the White House isn’t reaching out to the Chinese embassy to begin discussions.
The absence of any substantial outreach has frozen meaningful communications between the two countries and threatened the likelihood of a near-term solution.”
“Car companies, toy manufacturers, farmers, retail groups and others who face significant cost increases from President Donald Trump’s steep new tariffs on China are all ramping up their lobbying of the administration to press for carve-outs and assistance.
But, with no formal process in place to submit their requests, and no direct line to the one decision-maker who matters, most businesses and industries are hitting a wall, so far. And those in the business world with connections to the White House figure it’s likely to stay that way until an industry can demonstrate to the president there’s a true crisis at hand.”
“First, the Constitution gives Congress the authority to tax and impose tariffs. Congress has delegated that authority to the executive branch in a handful of trade laws passed over the course of the last century, but the president’s power in this area is a function of the particular language contained in those statutes. (The likely reason that Trump invoked IEEPA is that, unlike the more commonly invoked trade laws, IEEPA does not require administrative investigations or consultations with Congress.)
Second, the relevant provision of the IEEPA contains a bunch of words, but none of those words is “tariffs” or “taxes.”
Indeed, no president before Trump has ever used the IEEPA to impose tariffs. The law has typically been deployed to impose economic sanctions, such as prohibitions on transactions with designated foreign governments or businesses.
In theory, these facts should resonate with the Republican appointees on the court, who typically hold themselves out as committed textualists, eager to adhere only to the words on the page.
Third, even if the IEEPA granted the president the authority to impose tariffs, there are no actual “emergencies” here that would support them (though we will return to this notion).
The law authorizes the president to act when there is “an unusual and extraordinary threat … to the national security, foreign policy, or economy of the United States,” and the Trump administration has claimed that there are several different emergencies. They include the opioid crisis and illegal immigration, which Trump has invoked to support tariffs against Canada, Mexico and China. To support other global tariffs, Trump has claimed that the country’s “trade deficits” constitute the emergency.
At least as a factual matter, credible independent analysts have generally rejected these claims. Take the country’s trade deficits. “They’re not actually harmful any more than it’s somehow harmful if I have a trade deficit with my local supermarket,” Somin said. “I buy a lot of things from them, but they virtually never buy anything from me.”
Fourth, as the California complaint correctly notes, IEEPA was passed as part of an effort in the 1970s to limit the president’s emergency economic powers. Congress did not intend to expand the president’s powers or to give him carte blanche to overhaul the global trading system.
That fact may not move the Republican appointees on the Supreme Court if the issue gets to them — they generally oppose the use of legislative history in statutory interpretation — but it is likely to prove relevant to the three Democratic appointees.”
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” The Supreme Court might also side with the Trump administration given that the court is generally deferential to the president’s handling of foreign policy and his assessment of what constitutes a national emergency. We may not have had any national emergencies before Trump returned to office, but ironically, his tariffs may themselves have caused a global emergency — one that could give the justices reason to pause before coming in against the president in a way that could now severely constrain his powers on the global stage and diminish his international diplomatic standing.”