Are Trump’s Tariffs Constitutional?

The liberty principle for this Freedom Friday concerns the importance of the three branches of government – executive, legislative, and judicial – staying in their lanes of responsibility while supporting each other to keep the government strong. The Constitution outlines the duties of the three branches with Article I pertaining to the duties of the legislative branch, Article II pertaining to the duties of the executive branch, and Article III pertaining to the duties of the judicial branch. Basically, the legislative branch makes the laws, the executive branch enforces the laws, and the judicial branch determines if the laws are constitutional.

The U.S. Supreme Court heard arguments yesterday concerning President Donald Trump’s use of tariffs without Congressional approval. The case is Learning Resources, Inc. v. Trump. Fred Lucas reported on the Supreme Court hearing. 

At issue is whether the president exceeded his executive branch authority by imposing tariffs under the 1977 International Emergency Economic Powers Act, which is intended  to address emergencies only. Normally, trade policy, including tariffs, is enacted through legislation in Congress and signed by the president.

According to Lucas, several Justices questioned Trump’s authority to use tariffs without approval of Congress. He recognized that “Tariffs have long been core to Trump’s trade and economic agenda, often clashing with the more libertarian-leaning conservative views on free trade that dominated the Republican Party going back to at least the Ronald Reagan era.”

It will be interesting to learn how the Justices rule because their questions fell in several areas.

According to a Forbes article written by Alison Durkee, President Trump could still use tariffs under different laws, but their use would be narrower. The tariffs will remain in effect until the case is settled. 

The tariff case before the Supreme Court specifically concerns the “Liberation Day” tariffs, or “reciprocal tariffs,” that stem from Trump’s April announcement imposing tariffs on nearly all foreign countries. These tariffs are general tariff rates that apply to nearly all goods from foreign countries, with tariff rates set by country. The president also used IEEPA for his tariffs against Mexico, Canada and China, which he imposed due to the countries’ purported failing to address the flow of fentanyl into the U.S., so those tariffs would also be affected by a ruling declaring Trump can’t impose tariffs under IEEPA. The lawsuit would not impact other tariffs Trump separately imposed on specific industries or goods, such as automobile tariffs or tariffs on steel and aluminum, as those were justified under different federal statutes.

Legal experts told Forbes companies that paid “Liberation Day” tariffs on imports to the U.S. are likely entitled to refunds of the fees, if the tariffs are ultimately deemed unconstitutional…. Trump administration could fight the refunds and argue only companies who directly sued over the tariffs are entitled to them – but government officials have acknowledged they’ll likely be on the hook for returning at least some of the companies’ money. “We would have to give a refund on about half the tariffs, which would be terrible for the Treasury,” Bessent told “Meet the Press” on Sunday about what happens if the tariffs get overturned.

… While Trump’s ability to levy sweeping tariffs under IEEPA is up for legal debate, there are a number of other federal statutes that give Trump more explicit authority to impose tariffs. That tariff authority is much more limited than what Trump’s done with his “Liberation Day” tariffs, however, often imposing restrictions on how long they can be in effect or maximum tariff rates….

Bessent warned in a declaration to the Supreme Court that a ruling against Trump’s tariffs could threaten the administration’s trade deals with foreign countries, as the White House has used the threat of tariffs on countries’ goods to try and get better terms for the U.S. The Federal Circuit’s ruling against the tariffs has already “adversely affected ongoing negotiations,” Bessent claimed, as leaders from other countries are “questioning the President’s authority to impose tariffs, walking away from or delaying negotiations, and/or imposing a different calculus on their negotiating position.” The Trump administration also suggested an unfavorable tariff ruling could “jeopardize” Trump’s efforts to end the Russia-Ukraine war, as Trump has used tariffs to punish other countries that are still doing business with Moscow….

  

Why Did Trump Use Tariffs Against Canada and Mexico?

Numerous Americans – mostly on the Left – worried about the effects of President Donald Trump’s threats to levy tariffs against Canada and Mexico. Trump wanted both neighboring countries to do more to shut down the flow of fentanyl from their countries into the United States, and they were not responding as he thought they should. So, he threatened to levy 25% tariffs on each neighboring country. George Caldwell wrote about the “novel legal theory pursued by Trump. 

[Trump] declared an emergency then used his emergency authority to threaten to impose tariffs to get our neighbors to comply with his border enforcement and economic policies.

Trump bypassed the typical avenues of tariff policy and instead used the 1977 International Emergency Economic Powers Act to declare the emergency and justify his tariff threats.

The act has been used by various presidents since the 1970s to respond to threats such as the Iran Hostage Crisis, the international drug trade, and the rise of Chinese-owned social media app TikTok.

But presidents have only used it to freeze transactions or seize properties – never to implement broad tariffs….

After a call with Mexican President Claudia Sheinbaum Monday where she pledged to immediately order 10,000 Mexican troops to the border to prevent the flow of fentanyl into the United States, Trump agreed to put tariffs on hold for a month.

Just hours later, Trump put a similar one-month hold on tariffs when Canadian Prime Minister Justin Trudeau pledged 10,000 troops of his own to guard the northern border.

Although Trump’s methods for addressing the fentanyl crisis were unprecedented, they seem to have been effective.

Canada and Mexico should have stopped the immigrants moving through their countries to the United States, and they should have stopped the fentanyl. The fact is that neither of them cared about what was happening in the United States. The threat to levy tariffs against them made the situation personal to each country, so they began to care. In other words, Trump used the threat of tariffs to get their attention and cause them to act as they should have been acting previously.