The government tried to defend the tariffs as a national security measure, and the court didn’t buy it.
The Court of Appeals for the Federal Circuit has affirmed the Court of International Trade’s judgment that President Trump’s tariffs imposed under the International Emergency Economic Powers Act (IEEPA) are illegal. Contrary to Trump’s description of the court as “highly partisan,” the dissenting opinion supporting his position was written by an Obama appointee. The majority was calm and treated the case exactly as it should be treated: As a boring, straightforward, separation-of-powers case.
The case was argued before eleven judges. The per curiam opinion of the court, joined by seven judges, said that the specific tariffs Trump imposed under IEEPA were illegal. Four of them wrote a separate opinion arguing that IEEPA does not give any president the power to impose any tariffs at all. The remaining four judges joined a dissenting opinion saying that Trump’s tariffs are legal.
The opinion of the court is restrained and textualist. It notes that IEEPA does not include the word “tariff” or any equivalent word found in other laws or the Constitution. The government’s case rested on the law’s inclusion of the phrase “regulate . . . importation,” arguing that that was sufficient to allow tariffs. The court noted that the power to regulate is different from the power to tax, citing several other cases and laws to back that up.
There are plenty of other laws that Congress has passed that do delegate power to the president to impose tariffs. Trump knows about them; he used them during his first term. Such delegations have been upheld by courts over the years because they include limits. Trump didn’t use those laws because he didn’t want to be constrained by their limits, which include things such as periodic reviews, deadlines, and public comment periods.
The court all but says to use those laws instead. “We are not addressing whether the President’s actions should have been taken as a matter of policy,” the court said. That’s exactly the right approach. Judges aren’t economists, and they shouldn’t be judging whether tariffs are smart. They should be judging whether they are legal, which in this case, they are not.
To determine that, they use the major questions doctrine, which is a favorite of the originalist justices on the Supreme Court. They cite West Virginia v. EPA, the 2022 case that used the doctrine to strike down an Obama air regulation, and Biden v. Nebraska, the 2023 case that struck down Biden’s student-loan “forgiveness” plan. The majority opinion in both those cases was written by Chief Justice John Roberts.
The court explicitly compared the Trump administration’s behavior to the Biden administration’s in the student-loan case:
In this respect, the Government’s argument resembles the argument expressly rejected by the Supreme Court in Nebraska, where the Court concluded that Congress’s authorization to the Secretary of Education to “waive or modify” laws and regulations governing student debt did not encompass student debt relief. . . . The Court explained that “[h]owever broad the meaning of ‘waive or modify,’ that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here.” . . . The same is true of the statutory language (“regulate . . . importation”) at issue in this case.
The government tried to defend the tariffs as a national security measure, and the court didn’t buy it. “While the President of course has independent constitutional authority in [foreign affairs and national security], the power of the purse (including the power to tax) belongs to Congress,” the court said. “Absent a valid delegation by Congress, the President has no authority to impose taxes.”
The judge who wrote the dissent in favor of much of the Trump administration’s position was Richard Taranto, who was appointed by . . . Barack Obama in 2013. It should come as no surprise that an Obama-appointed judge could find something to like in executive overreach.
The majority could have written the kind of biased, screeching, left-wing, anti-Trump opinion that some federal judges have written over the years. Instead, it wrote a boring, measured opinion that used conservative judicial principles to get to its result.
Obviously, clearly, plainly, and without a doubt, the president does not have unilateral authority to levy tariffs on any good from any country at any rate for any length of time. That was the Trump administration’s claim here. And one of the supporting arguments was that without this power that nobody imagined existed until this year, the United States would fail as a country and be plunged into another Great Depression. Seriously, the solicitor general said that. It was good to see a second federal court realize this argument for what it is, and one hopes the Supreme Court will do the same soon enough.