Article I, Section 8 of the Constitution empowers Congress, and no other branch, “to lay and collect taxes, duties, imposts, and excises.” There are no student loan or tariff exceptions in the Constitution. Not even in “cases of emergencies.”
Nor does the document empower the legislative branch to delegate its clear-cut Article I powers to the executive branch any more than it empowers the Supreme Court to delegate its Article III powers to Congress.
This week, the United States Court of International Trade invalidated many of Donald Trump’s “Liberation Day” tariffs. The decision relies heavily on the nondelegation doctrine, as Congress has put no meaningful limitations on the president’s power. Hopefully, this reasoning will be used to strike down laws that have handed unwarranted emergency powers to the White House.
It was Trump’s choice to rely on the International Emergency Economic Powers Act to implement his wide-ranging protectionist agenda. As the court points out, this law conferred “limited authority” to the president to “deal with an unusual and extraordinary threat to which a national emergency has been declared.”
Well, Trump’s “Liberation Day” was an assault on the very concept of “limitations.” The White House placed tariffs on imports from virtually every nation on Earth, including Canada, the EU, Japan, and other allies who do not pose any threat, much less an “extraordinary threat,” to our security.
We can debate how the economy should be run. Making those changes is the purview of lawmakers. If you want to bring low-paying antiquated factory work back to save America’s soul, have congress pass a bill. The president doesn’t get to implement a massive economic reform just because he doesn’t understand trade deficits.
Now, perhaps if Trump had narrowly targeted one or two countries for sending in fentanyl or illegals over the border, he could have cobbled together some legal justification for ruling by decree. Instead, the president promised a minimum baseline of a 10% tariff on all foreign trade in perpetuity. That is transparent economic policymaking, and a legislative concern.
The White House openly argues that tariffs were meant to change American culture. Trump, for example, has promised on numerous occasions that his tariffs would allow us to get rid of income taxes. This isn’t only a fantasy, it’s proof that the White House is appropriating emergency powers to create long-term economic policy. Short of war, there’s no “emergency” that necessitates the president unilaterally instituting one of the largest tax hikes in history.
By the way, there’s nothing “unusual” going on — unless you consider manufacturing output being all-time highs weird. Unemployment is at a near-historic low. Our economic growth has outpaced every first-world nation in the world over the past decade. Only about 17% of the U.S. economy is made up of goods and services imported into the United States. You might not like it, but we are hardly under the thumb of foreigners.
There’s simply no good-faith interpretation of the constitutional order that envisions an economy being subjected to the daily unpredictable whims of a president. Dozens of times since “Liberation Day,” Trump has altered his trade policy, sometimes making U-turns, even changing the entire reasoning for the policy. You might have convinced yourself that Trump is history’s most adept dealmaker, but that’s not his job; all he’s done is create instability and uncertainty.
At the very least, an executive who cared about the rule of law would be judicious in using extraconstitutional authority. Trump, to be charitable, has not. It is completely appropriate for courts to step in.
After the trade court’s ruling, Trump advisor Stephen Miller complained that “judicial coup is out of control.” Yes, numerous political courts have acted badly. However, we should distinguish between judges who usurp the White House’s legitimate power and restrain illegitimate ones. The Court of International Trade was created to adjudicate U.S. customs and trade disputes. That job seems exceptionally relevant when the executive branch is wielding a power it never intended to possess.
The suit against the Trump administration wasn’t brought by large, rent-seeking corporations that can survive more regulations and costs. It was filed by small businesses that face a far higher threat from protectionist policies. Are these people part of the coup, as well?
The administration has already appealed the decision to a higher court. That’s how it works. The trade court has only stopped these tariffs temporarily. Hopefully, the Supreme Court will do so permanently.
