Federal courts have ruled that President Donald Trump did not have legal authority to impose his worldwide “Liberation Day” tariffs, nor his earlier tariffs on Mexico, Canada, and China.

Trump and his White House have reacted angrily, calling these court rulings a “coup” and claiming they “usurp the authority of President Trump, to stop him from carrying out the mandate the American people gave him.”

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It’s a page straight out of the Left’s playbook: The administration is attacking the constitutional system for being undemocratic (which it is, by design), and pegging every undesirable court ruling as illegitimate.

This is what the Biden administration did for four years. It’s the way Obamacare defenders and abortion defenders have behaved for decades. And it’s grounded in a misunderstanding of the separation of powers.

The Constitution

The different parts of the U.S. government get their powers from the Constitution. The president has only the powers granted to him by Article 2 of the Constitution, plus those powers granted to him by acts of Congress.

“Co-equal branches” is a common phrase history teachers and political commentators use to describe the separation of powers between Congress, the presidency, and the federal courts, but there’s a debatable assumption embedded there. Arguably, Congress is actually the supreme branch, although the executive and judicial branches clearly have checks on it.

The president’s job, for the most part, is to carry out — to execute — what Congress tells him to do.

While congressional supremacy is not an uncontroversial view, it is undeniably Congress’s job to set tax law. Article 1 of the Constitution created Congress, and Section 8 of Article 1 enumerates Congress’s powers. Article 1, Section 8 begins with these words: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises.”

Tariffs, of course, are taxes that importers pay to the U.S. government. It is inarguably up to Congress to create tariffs and set their level.

But Congress always and necessarily gives the executive some discretion in executing the laws it passes. For instance, Congress sets the rate at which income is taxed, but the ultimate details about how to count income, such as what if a company spins off a unit mid-year or how the different entities are taxed, are left up to the Internal Revenue Service.

Tariffs and trade

On trade, Congress has given the executive significant flexibility. You might even say that Congress has spent about 100 years delegating trade authority, including tariff power, to the president. Trade lies at the intersection of economic and foreign policy, and foreign policy has long been a realm where Congress and the courts have granted the president wide berth.

One main reason is that presidents need the ability to negotiate foreign policy. If a president needs to pass a bill for every change in trade policy, they cannot credibly make a promise or threat to a counterparty.

That’s why many presidents have asked Congress for fast-track authority, more recently called Trade Promotion Authority. The Trade Act of 2002, for instance, gave presidents more authority to sign trade agreements. The law required Congress to make a timely up-or-down vote, with no amendments, on any deal the president signed.

Congress also delegated trade powers to the president in the International Emergency Economic Powers Act, an update of pre-World War II laws on emergency trade powers. The 1977 law empowers the president regulate foreign trade “to deal with 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 a threat.”

For instance, in 1979, 11 days into the Iran hostage crisis, President Jimmy Carter used the IEEPA to freeze Iranian assets held in American banks. A few months later, Carter used the same law to ban trading with Iran.

Similar laws, such as the Trade Act of 1974, explicitly gave the president authority to impose, raise, or lower tariffs. For instance, former President George W. Bush, in his first term, erected temporary steel tariffs under Section 201 of the law. This was, like Carter’s IEEPA actions, done under emergency power. The law allowed the president to increase tariffs or other import restrictions when faced with imports of “such increased quantities as to be a substantial cause of serious injury” to the domestic industry.

It is widely accepted that Bush imposed these tariffs simply to help the Republican Party in West Virginia, Ohio, and Pennsylvania.

Trump has not relied on Section 201 in his tariffs this term but on the IEEPA. His February tariffs on goods from Mexico, Canada, and China were supposed to address emergencies regarding illegal immigration and the smuggling of fentanyl.

Likewise, Trump invoked IEEPA when announcing his “Liberation Day” tariffs on imports from every country globally. He said that America’s trade deficit has “led to the hollowing out of our manufacturing base; resulted in a lack of incentive to increase advanced domestic manufacturing capacity; undermined critical supply chains; and rendered our defense-industrial base dependent on foreign adversaries.”

The courts

This is where the courts come in. Since Marbury v. Madison, the federal courts have had the job of striking down unconstitutional laws. In the Constitution, it is clear that federal courts have the ability to block the executive from taking actions not authorized by law.

Many small businesses and some state governments brought cases to the U.S. Court of International Trade. These plaintiffs argued that these tariffs harmed them and that the IEEPA didn’t actually give Trump the power to impose tariffs on imports from every country.

Yes, it’s plausible to read the IEEPA such that the president, simply by declaring an emergency, has absolute power to impose tariffs on anyone he pleases. However, that reading of the IEEPA would suggest that Congress has effectively granted the president the power to legislate, specifically the power “to lay and collect Taxes, Duties, Imposts and Excises.”

Different courts will come to different conclusions, but here was the key conclusion of the Court of International Trade: “Because of the Constitution’s express allocation of the tariff power to Congress … we do not read IEEPA to delegate an unbounded tariff authority to the President. We instead read IEEPA’s provisions to impose meaningful limits on any such authority it confers.”

First, it takes some stretching of IEEPA’s text to argue that the law gives the president the right to impose tariffs at all. The law allows the president, in case of an emergency, to “regulate … [the] importation” of goods. If that language allows the president to impose permanently any tariffs of any size on every country of the world, then the law has fully delegated the tariff power to the president and made the president into a legislator. The Court of International Trade says that it would be unconstitutional.

Second, the court concluded that a trade deficit does not qualify as an emergency that can trigger IEEPA powers.

WHICH STATES ARE THE MOOCHERS NOW?

Many observers grant that Trump could more plausibly claim these emergency powers on the trafficking tariffs (the February tariffs on goods from Mexico, Canada, and China), but not on, say, 50% tariffs on goods from Lesotho.

Presidents typically stretch their legal authority. They regularly get called into court, and they often lose. This doesn’t reflect a coup or some usurpation of power. They reflect a system of checks and balances and separation of powers.