Constitutional Law
This ‘reinvigorated’ doctrine could be used to challenge Trump’s tariffs
Importers and others who want to challenge tariffs imposed by President Donald Trump could argue that he doesn’t have that power—but the argument isn’t a slam dunk, legal experts say. (Photo from Shutterstock)
Importers and others who want to challenge tariffs imposed by President Donald Trump could argue that he doesn’t have that power—but the argument isn’t a slam dunk, legal experts say.
Trump has cited the International Emergency Economic Powers Act of 1977, a law giving presidents authority to restrict trade in some circumstances, as authority for his power to impose tariffs. At issue is whether the IEEPA gives Trump that power and whether the “major questions doctrine” leads to the conclusion that it does not, Bloomberg Law reports.
Trump has imposed a 10% tariff on imports from China, but he paused threatened tariffs of 25% on goods from Canada and Mexico. Trump said tariffs are needed because of “the grave threat to the United States posed by the influx of illegal aliens and illicit drugs” at the borders, creating a national emergency.
Under the major questions doctrine, Congress must “speak clearly” when authorizing an executive branch agency to make decisions of vast economic and political significance, wrote Ilya Somin, a professor at the George Mason University Antonin Scalia Law School, at the Volokh Conspiracy. If a statute is ambiguous, the presumption is that the power was not granted.
The major questions doctrine has been “reinvigorated” by the U.S. Supreme Court in striking down the federal eviction moratorium and vaccine mandates imposed during the COVID-19 pandemic, Bloomberg Law says.
The Supreme Court also cited the doctrine when it ruled that the Environmental Protection Agency didn’t have broad power to regulate climate change and that the Biden administration didn’t have the power to forgive student loans.
Somin argued that imposing “massive tariffs” is “pretty obviously” a decision with vast economic and political significance with high costs to the public. And the statute under which Trump claimed authority is far from clear, as were the statutes in the student loan and eviction moratorium cases, he wrote.
The IEEPA is a “vague statute” that authorizes presidents to restrict trade when there is “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy or economy of the United States, if the president declares a national emergency with respect to such threat,” Somin wrote.
Peter E. Harrell, an adjunct senior fellow at the Center for a New American Security, also sees an argument regarding the major questions doctrine, particularly for “universal baseline” tariffs imposing a specific percentage charge on all imports.
“Courts should find that allowing Trump to waive his magic sharpie to sign an IEEPA executive order imposing tariffs would upset the balance Congress has long sought to strike when it delegates its tariff authority to the president,” he wrote in a Lawfare post.
Apart from the major questions doctrine, an argument could be made that the plain text of the IEEPA doesn’t give presidents tariff authority, Harrell wrote.
Article 1, Section 8 of the U.S. Constitution gives Congress the authority to set tariffs and regulate commerce with foreign nations. A president’s power to set tariffs comes from delegated authority by Congress, Harrell wrote. The IEEPA gives a president the power to ban or limit exports and imports, but the list “notably” does not explicitly include the power to impose tariffs or taxes.
Saikrishna Prakash, a professor at the University of Virginia School of Law, told Bloomberg Law that the opposite argument is that the broad powers granted by the law should include the lesser power of imposing tariffs.
The “IEEPA allows a very broad power to ban commerce, and so given that, why can’t the president do something less?” Prakash asks.
Somin sees yet another argument that the the nondelegation doctrine applies. It allows broad delegations of power when they are based on an “intelligible principle.” Some Supreme Court justices have expressed interest in “tightening up” the doctrine, and a tariff challenge “might be a good opportunity to do just that,” he wrote.
Somin doesn’t argue that a challenge to tariffs is likely to succeed.
“But the arguments are strong,” he wrote, particularly those in support of the major questions doctrine.
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