SCOTUS strikes down Trump’s claim to tariff powers under the IEEPA (International Emergency Economic Powers Act)
It seems a lot of people on the right who have followed this case closely are not especially surprised. I didn’t follow it closely, but I still am not especially surprised. It seems that he can still impose tariffs under other statutes – perhaps.
The power to impose duties is the power to create revenue streams, and the framers of the Constitution understood the dangers of allowing the executive as both head of state and head of government its own independent revenue. Kings had those powers before Parliament became supreme in England, and for a while afterward as well. Trump and his team had proposed at times that he could exert full authority over tariff revenue without seeking approval from Congress, which makes this a very apt concern about crossing those boundaries. Tariffs imposed by Congress create revenue streams they control, and can then appropriate as they see fit, allowing them to use the power of the purse to oversee and check executive authority.
This is the reason I have always been skeptical that Trump would succeed in a challenge to these tariffs, at least under the emergency powers of the IEEPA. However, that’s not the only way in which Trump could justify these tariffs. Jonathan Turley reminded Fox viewers that Trump has other statutes on which he can rely, although those come with restrictions, and Bruce Mehlman laid them out on Twitter as well …
The ruling was 6-3, with Alito, Thomas, and Kavanaugh dissenting and Barrett, Gorsuch, and Roberts joining the liberals to make the majority.
What are these other ways that might be used impose tariffs? You can find a list here, but I have no idea how SCOTUS would react to them.
Trump has criticized the justices who voted against him, particularly the ones who are supposedly on the right; I think that’s a bad move for many reasons, and one of them is practical: it won’t make them more inclined to vote in his favor in the future. They’re only human. Trump added:
But at the same time, Trump said the ruling allows him to take other routes, and possibly impose stronger tariffs. So I cannot tell if he is happy or mad, especially since he said he should have used these alternative routes in the first place:
“Effective immediately, all national security tariffs under Section 232 and existing Section 301 tariffs remain in place… Today, I will sign an order to impose a 10% global tariff under Section 122 over and above our normal tariffs already being charged.”
See also this from Turley:
Fox News contributor Jonathan Turley called the Supreme Court’s Friday decision on tariffs a “blow to the administration” and argued justices feared a “slippery slope” when it comes to President Donald Trump’s authority. …
Turley said Trump’s team did a “terrific job” and “could not have argued the case better,” but Chief Justice John Roberts and others viewed the emergency tariffs as a tax and under the authority of Congress.
“The night is hardly over for the administration,” Turley warned, arguing there are still other statutes the president can use to impose tariffs.
The latest decision, he added though, could have sweeping effects on both the economy and the administration’s foreign policy, which has sometimes included using the threat of tariffs against other countries.
See also this from John Hinderaker:
I think it is worth noting that the financial markets did not react to today’s decision, either positively or negatively. If it were true that tariffs would devastate our economy, as liberals have claimed, today’s news should have caused the markets to skyrocket. Conversely, of course, if the tariffs were seen by sophisticated observers as a great boon to our economy, the markets should have tanked. The fact that neither happened suggests that the overall impact of tariffs, at least in the short term, was close to being a wash.
Well if there is a SCOTUS judge who knows what a law is and what a tax is that is certainly Chief Justice John Roberts of the ACA infamy.
Trump’s completing the Biden playbook by immediately announcing new tariffs, purportedly justified by a different statute. He and and Vance are both attacking the Supreme Court in shrill terms.
When Obama attacked the Supreme Court like this, we called him on it. When Biden attacked the Supreme Court like this and re-instituted his student loan “forgiveness,” we called him on it.
I guess we get to see who was criticizing Obama and Biden because they really believe what they did was wrong and who was just cheering for their own team. Kudos to neo for at least calling out Trump’s SC criticism as self-defeating.
Coda – If Dems take power in 2029 and pack the Supreme Court, wiping out the conservative majority, you had better believe they’ll cite Trump’s ill-advised jeremiad as part of their justification.
Fox News contributor Jonathan Turley called the Supreme Court’s Friday decision on tariffs a “blow to the administration” and argued justices feared a “slippery slope” when it comes to President Donald Trump’s authority. …
The slippery slope argument is just scare mongering, IMO. At any time all Congress needs to do is pass legislation clarifying their intentions for how the authority could be used.
It just feeds into this narrative that Trump is a dictator/going to be a dictator.
Ted Cruz had said recently he thought they would find some middle ground, since this ruling is likely to create chaos as every company/country is going to demand a refund.
Bauxite:
I didn’t call it out as merely self-defeating. I wrote this [emphasis added]: ” I think that’s a bad move for many reasons, and one of them is practical: it won’t make them more inclined to vote in his favor in the future.” That’s just the practical reason. The larger one is I don’t think presidents should trash SCOTUS, unless there’s something absolutely and totally egregious that has occurred. This decision is not that.
Of course – as you yourself point out – the principle has been violated by the left. Many times, actually. And that goes back quite a ways – for example, this as well as FDR’s calling the justices “nine old men.”
Concerned Conservative, aka Bauxite, the man who lives on a diet of crow, tries to equate President Trump with FJB and The Lightbringer.
Concerned Conservative can’t grasp that the Democrats fully intend to extract revenge on the rest of the country for their ouster in 2024. You see, CC, that is what they fully intend to do no matter what President Trump has done. It is what they are, ruthless, power mad, sons and daughters of bachelors. Susan Rice laid it out and even you should be able to understand what they intend.
neo – I appreciate the clarification and agree completely with your position on the executive trashing SCOTUS. Mea culpa for poor reading comprehension.
It’s particularly dangerous for the right to to trash the Supreme Court for limiting the power of the executive. SCOTUS typically acts as a limitation on the ambitions of the left. With the exception of Trump’s tariff nonsense, the right really needs SCOTUS to continue credibly performing that role.
…but Chief Justice John Roberts and others viewed the emergency tariffs as a tax and under the authority of Congress.
—John Turley
Reminds me of Roberts dodge that the Obamacare mandate was a “tax” and therefore under the authority of Congress.
The central legal debate over Obamacare’s individual mandate was whether Congress could constitutionally require Americans to buy health insurance under its power to regulate interstate commerce.
The Supreme Court, in National Federation of Independent Business v. Sebelius (2012), decided: the individual mandate could not be justified under the Commerce Clause.
Later Roberts argued that the mandate penalty was not a penalty but a tax, thereby deciding the Court’s landmark decision in favor of Obamacare.
I always saw that as Roberts’ hypocritical effort to shield the Court from accusations of playing politics by … playing politics.
huxley:
Indeed, Chief Justice Roberts is multitalented, a legislator and jurist, just seemingly immune from political considerations (sarc).
huxley:
Yes, Roberts is very Humpty-Dumptyish on the definition of “tax.”
“The ruling was 6-3, with Alito, Thomas, and Gorsuch dissenting and Barrett, Kavanugh, and Roberts joining the liberals to make the majority.”
I see other sources (Branco) say the dissent was Alito, Thomas, and Kavanugh… Gorsuch joined the liberals.
I like how Trump backhanded complimented the 3 ladies of SCOTUS, pointing out how they vote NO, no matter the case as long as it hurts Trump. He wished that members of the GOP were as loyal.
Another Mike:
You are correct. I don’t know why I switched Gorsuch and Kavanaugh. Will fix.
om, bauxy understands perfectly what the Democrats intend because he is in favor of it:
Physicsguy– Yes!
Neo– On the up-side, it got me digging to find reliable confirmation before I posted. 🙂 I’m surprised that some of the actually smart commenters did not see it before I did. In my working life, these things were called “alertness checks”.
Very interesting stock-price pattern today from Decker Outdoor, which is the marker of HOKA and UGG shoes, and whose results and stock prices had been negatively influenced by tariffs:
https://seekingalpha.com/symbol/DECK