The Trump Tariffs: Explaining the Constitutional Complexities—Part 2

Commentary

Part 1 of this series can be read here. 

The first installment of this series explains that, under the Constitution’s design, President Donald Trump’s tariffs are not “taxes” but regulations of trade. It notes that the Constitution assigns commercial regulation to Congress rather than to the president. But the first installment states that in 1976 Congress adopted the National Emergencies Act, which gives the president authority to declare emergencies at will. And the following year, Congress enacted the International Emergency Economic Powers Act (IEEPA), which granted the president broad power to “regulate importation” in a presidentially declared emergency.

The Constitution, when read with its historical and legal background, makes it clear that Congress may not simply abdicate to the president its power to regulate commerce. But by the National Emergencies Act and the IEEPA, Congress seems to have done so. Those laws are only two examples of how Congress has unloaded massive areas of governance onto the executive branch.

Many scholars believe that this wholesale transfer is unconstitutional, and the Supreme Court has given some support to that opinion. The court agrees that Congress may charge the executive with important responsibilities but thinks that Congress must define them more precisely and more narrowly. If this view is correct (and I believe that it is), then the Supreme Court should strike down the president’s tariffs—not so much because he has exceeded his constitutional power, but because Congress has done so by transferring congressional functions to him.

The Case in the Courts

The current Supreme Court has been willing to void state laws and federal regulations. It also has been willing to interpret federal laws and regulations narrowly. But it has been extraordinarily unwilling to void congressional laws on the grounds that they exceed Congress’s enumerated powers.

In continued defiance of the media’s efforts to label the court as “conservative,” the justices have deferred repeatedly to congressional pretensions to regulate everything and anything. A premier example is the Affordable Care Act, former President Barack Obama’s health care law, known as Obamacare. The Supreme Court went through judicial contortions to uphold this constitutionally flawed statute not just once, but a second and a third time.

Litigants and jurists on the lower courts know that the Supreme Court is not prone to void federal laws. So those concerned about the excesses in the National Emergencies Act and the IEEPA have discussed other ways to approach the president’s tariffs. The U.S. Court of International Trade, for example, ruled that some tariffs were void—not because the statutes themselves were unconstitutional, but because the tariffs were unlimited rather than tied to any statutory criteria. The same bench held another group of tariffs void because it did not, as required by Section 1701(b) of the IEEPA, “deal with” the purported subject of the emergency declaration.

Other jurists have proposed applying the Supreme Court’s “major questions doctrine.” This doctrine states that when Congress delegates powers of “vast economic and political significance,” it must “speak clearly.” In other words, in doubtful cases, the courts should avoid interpreting a statute more widely than Congress intended.

The Supreme Court has used the major questions doctrine in several other high-profile cases. One was its decision striking down former President Joe Biden’s order forcing more than 100 million people to take the COVID-19 vaccine. Another occasion was when the justices voided Biden’s effort to transfer billions of dollars in student debt to taxpayers. In neither case, the court ruled, did the statute “speak clearly” to give the president such enormous power.

But in this case, Trump seems to have interpreted the law better than Biden. The most natural reading of the National Emergencies Act does give the president authority to declare an emergency on almost any topic he chooses. The most natural reading of the IEEPA gives the president, once he has declared an emergency, seemingly unlimited power to “regulate importation”—and thus to impose prohibitory tariffs.

So if it is a step too far to allow a single person to impose major tariffs whenever he wills it, then the fault is not primarily with Trump. The fault is primarily with Congress for passing unconstitutional statutes.

The Best Resolution

Whether or not you are a supporter of Trump, the fact remains that no one person should be entrusted with the vast powers that the National Emergencies Act and the IEEPA purport to give. The Supreme Court should muster some grit and rule that, by adopting these laws in their current form, Congress has exceeded its power.

Moreover, this is a good case for the court to declare a federal law unconstitutional. If the justices had struck down Obamacare (for example), they would be saying, “Congress has exceeded its constitutional authority; it has claimed the power to regulate in an area in which it has none.” But by voiding portions of the National Emergencies Act and the IEEPA, the justices would be saying only, “Congress, you have this power, but you must exercise it yourself—or at least define more clearly when the president can exercise it.”

Such a message respects, rather than confronts, congressional pretensions.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.